Dora P., In re

• Decision Date: 28 June 1979
• Parties: In re DORA P., a person alleged to be a juvenile delinquent, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 597

418 N.Y.S.2d 597

68 A.D.2d 719

In re DORA P., a person alleged to be a juvenile delinquent,

Respondent-Respondent.

Supreme Court, Appellate Division, First Department.

June 28, 1979.

Stephen J. McGrath, Astoria, of counsel (L. Kevin Sheridan and Francis F. Caputo, New York City, with him on brief; Allen G. Schwartz, Corp. Counsel, New York City), for petitioner-appellant.

Beryl Kuder, New York City, of counsel (George D. Zuckerman, New York City, with her on briefs; Robert Abrams, Atty. Gen.), for intervenor-appellant.

Janet R. Fink, New York City, for respondent-respondent.

Before BIRNS, J. P., and FEIN, BLOOM, LANE and MARKEWICH, JJ.

BLOOM, Justice:

On March 6, 1977, respondent, then fourteen years of age, was arrested and charged with robbery in the second degree, assault in the second degree and prostitution. Initially, she gave her age as sixteen. Accordingly, she was arraigned in the Criminal Court. At that time it was ascertained that she was only fourteen. She was, therefore, paroled and directed to appear in the Family Court on March 8, 1977. On that day a petition was filed charging her with juvenile delinquency in that, acting in concert with four others one of whom had been apprehended, she " * * * did forcibly steal property, to wit: $30 in U.S. currency from the Complainant, and with intent to cause physical injury did cause physical injury to the Complainant by beating the Complainant about the head and body with her fists. Hospital treatment was necessary. Respondent did offer to perform a deviate sexual act for U.S. currency". The petition further alleged that such acts, if committed by an adult, would constitute robbery in the second degree, assault in the second degree and prostitution.

Respondent was paroled in the custody of her mother and the matter was adjourned to April 27, 1977 for hearing. On April 5, 1977, respondent filed her answer and demand for a bill of particulars. Pursuant to the demand, petitioner served his bill on April 22, 1977. The averments of paragraph 10 thereof set forth that:

"On March 6, 1977, at about 8:30 p. m. Respondent accosted complaining witness on the street and offered to engage in sexual acts with him for a fee of $10; he agreed and Respondent took him to the Evans Hotel, 273 W. 38 Street, New York City. Complaining witness paid $4 for the use of a room, and went there with Respondent. Two other females and two males were in the room. All five forcibly stole $40 from complaining witness and beat him".

On April 27, 1977, respondent's law guardian moved orally to dismiss the charge of prostitution on two grounds: (1) inasmuch as respondent was under the age of seventeen years she was deemed incapable of consenting to a sexual act (PL § 130.05(3)(a)), and (2) the statute proscribing prostitution (PL § 230.00) is unconstitutional. Seemingly, the defense that respondent was incapable of consent because of her age was abandoned in Family Court. It is not here urged. Accordingly, we do not treat with it.

After the filing of affidavits and the exchange and submission of legal memoranda, the motion to dismiss was finally submitted in August, 1977. Prior thereto, in June, 1977, the Court, pursuant to CPLR 1012(b), caused notice to be served upon the Attorney General informing him that the proceeding was pending, and that it involved the constitutionality of section 230.00 of the Penal Law. He was invited to intervene. A similar notice was sent on September 8, 1977, this time directed to §§ 130.00(2) and 130.38 of the Penal Law. On both occasions, the Attorney General declined the invitation.

On December 5, 1977, the Court rendered this decision (92 Misc.2d 62, 400 N.Y.S.2d 455) holding that Penal Law §§ 130.00(2) and 230.00 are unconstitutional. She dismissed all charges of "sexual misconduct" and adjourned the hearing on the robbery and assault charges to January 13, 1978. On the adjourned date, the Court, in the absence of respondent, dismissed the two remaining charges, Sua sponte, asserting that respondent had been denied a speedy trial.

I

At the outset, we are urged to dismiss this appeal upon the ground that the passage of more than two years since respondent's arrest has made the case academic. However, the exclusive original jurisdiction conferred upon the Family Court over persons alleged to be juvenile delinquents (FCA § 713) is controlled by "the age of the respondent at the time the delinquent act allegedly was done * * *" (FCA § 714(a)), and not by the age of respondent at the time of hearing. Moreover, the case raises matters of constitutional dimension and grave public interest. They are important in the context of juvenile justice; indeed they bear upon the operation of the criminal justice system. They are apt to recur, albeit in fact patterns which may vary in degree from that here posed.

Accordingly, we decline the invitation to dismiss the appeal as moot. Instead, we have determined to resolve the merits (Arnold v. District Council No. 9, International Brotherhood of Painters and Allied Trades, AFL-CIO, 46 N.Y.2d 999, 416 N.Y.S.2d 235, 389 N.E.2d 830; see also People v. Parker, 41 N.Y.2d 21, 25, 390 N.Y.S.2d 837, 840, 359 N.E.2d 348, 350; Matter of Amato v. Ward, 41 N.Y.2d 469, 471, 393 N.Y.S.2d 934, 935, 362 N.E.2d 566, 568; Matter of Beattie v. Board of Parole, 39 N.Y.2d 445, 446, 447, 384 N.Y.S.2d 397, 398, 348 N.E.2d 873, 874; Iafrate v. Suffolk County Bd. of Elections, 42 N.Y.2d 991, 992, 398 N.Y.S.2d 413, 368 N.E.2d 35, 36; Matter of Rosenthal v. Harwood, 35 N.Y.2d 469, 472, 363 N.Y.S.2d 937, 939, 323 N.E.2d 179, 181; Peo. ex rel. Donohoe v. Montanye, 35 N.Y.2d 221, 224, 360 N.Y.S.2d 619, 620, 318 N.E.2d 781, 782; Le Drugstore Etats Unis, Inc. v. N. Y. S. Bd. of Pharmacy, 33 N.Y.2d 298, 301, 352 N.Y.S.2d 188, 189, 307 N.E.2d 249, 250; Peo. ex rel. Guggenheim v. Mucci, 32 N.Y.2d 307, 310, 344 N.Y.S.2d 944, 945, 298 N.E.2d 109, 110). Additional support for this conclusion is to be found in rulings of the United States Supreme Court (Roe v. Wade, 410 U.S. 113, 124, 125, 93 S.Ct. 705, 35 L.Ed.2d 147, rehearing denied 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694; Doe v. Bolton, Attorney General, Georgia, 410 U.S. 179, 187-8, 93 S.Ct. 739, 35 L.Ed.2d 201, rehearing denied 410 U.S. 959, 93 S.Ct. 1410, 35 L.Ed.2d 694).

II

We treat next with the dismissal of the proceeding by the Court, Sua sponte, on January 13, 1978 on the ground that respondent has been deprived of a speedy trial. Concededly, at that time, the proceeding had been pending for more than ten months. It must also be noted that, at the time of the institution of the Family Court proceeding, there was stamped on the orders and adjournment sheet, the notation "STANDARDS & GOALS DEADLINE FOR FACT FINDING FOR THIS CASE IS JUNE 24, 1977".

Against this must be counterbalanced the fact that on April 27, 1977, respondent moved to dismiss the prostitution charge against her and, as late as July 29, 1977, more than a month after the deadline date for the fact finding hearing, was still submitting affidavits in support of that motion. It is undisputed that final submission of the motion to dismiss did not take place until August, 1977.

To this must be added the following: On the argument, we were told that in the period intervening between the institution of this proceeding and its disposition by the order of dismissal, respondent, in a totally unrelated proceeding, was found to be a person in need of supervision and was placed, pursuant to § 754(c) of the Family Court Act. She thereafter absconded and a warrant for her apprehension was issued and outstanding at the time of the dismissal of this proceeding. Indeed, she was not present in court on the day of the dismissal.

Respondent, also on argument, conceded the truth of these assertions. Her reply thereto was that whenever her presence had been required in this proceeding, she attended. The significance of this statement escapes us. Although there were numerous intermediate adjournments, her presence was not Required at any of them. No hearings took place and no testimony was taken. The one time her presence was Required was the time when the fact finding hearing was scheduled to be held, January 13, 1978. Concededly, she was not present at that time. In the absence of a showing that she was present in court on specific occasions, and no such showing has been made, there is no basis for charging petitioner with the delay in proceeding to a fact finding hearing.

The right to a speedy and public trial is guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution (Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26), and by state statute (Civil Rights Law § 12; CPL 30.20). Indeed, so important does this State consider the right, that it has encompassed it within a specific time frame (CPL 30.30). While the right, as defined by the Federal Constitution and state statute, speaks only of criminal proceedings, "(i)t would take a distorted view to believe that adult felony criminal proceedings were designed to be more tender of the rights of detained adults than the Family Court proceedings are of juveniles" (Peo. ex rel. Guggenheim v. Mucci, supra, 32 N.Y.2d 307, 313, 344 N.Y.S.2d 944, 949, 298 N.E.2d 109, 112; see also Peo. ex rel. Kaufmann v. Davis, 57 A.D.2d 597, 393 N.Y.S.2d 746).

Mere passage of time is not, in and of itself, sufficient to trigger the constitutional right to dismissal upon the ground that a speedy trial has been denied (Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101). In determining whether the constitutional right has been infringed, there must be a balancing of factors including "(1) the extent of delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended...