Edward W., Matter of

• Decision Date: 23 February 1977
• Citation: 392 N.Y.S.2d 208,89 Misc.2d 570
• Parties: In the Matter of EDWARD W. a child alleged to be a juvenile delinquent. * In the Matter of REBA C. a child alleged to be a juvenile delinquent. * In the Matter of ANDREW N. a child alleged to be a juvenile delinquent. *
• Court: New York Family Court

Page 208

392 N.Y.S.2d 208

89 Misc.2d 570

In the Matter of EDWARD W. a child alleged to be a juvenile

delinquent. ^*

In the Matter of REBA C. a child alleged to be a juvenile

delinquent. ^*

In the Matter of ANDREW N. a child alleged to be a juvenile

delinquent. ^*

Family Court, Onondaga County.

Feb. 23, 1977.

Peter R. Eriksen, Asst. County Atty., Syracuse, for petitioner

Lawrence J. Young, Syracuse, Law Guardian, for Child Edward W.

Theodore A. Trespasz, Syracuse, Law Guardian, for Child Reba C.

Robert W. Hartnett, Syracuse, Counsel, for Child Andrew N.

DECISION

EDWARD J. McLAUGHLIN, Judge.

In each of the three subject cases it ws alleged that the respondent committed an act that, if committed by an adult, would have constituted a crime. In each of the cases a verified petition was filed in Family Court pursuant to Article 7 Family Court Act, more than two months after the alleged act was committed. Further, in each of the cases, the respondent moved for the dismissal of the petition on the grounds that the provisions of S 734(c) Family Court Act, with regard to the time within which a petition can be filed had been exceeded. However, the basis for the motion for dismissal was different in each of the cases.

I. FACTS

In the case of Edward W., it was alleged that the child committed an act on July 10, 1976 which, if committed by an adult, would have constituted the crime of Assault 3rd Degree, a violation of Section 120.00 Penal Law. The Youth Division of the Syracyse Police Department referred the matter to the Onondaga County Probation Department on July 21, 1976, and a petition was subsequently filed with the Court on September 16, 1976. This Respondent moved for the dismissal of the petition on the ground that since more than two months had elapsed between the time the Syracuse Police Department became aware that the Respondent was involved in the act, and the filing of the petition, it must be dismissed since the Statute of Limitations had run.

In the matter involving Andrew N., the petition alleged that the Respondent committed an act which would have constituted the crime of Criminal Possession of Stolen Property, a violation of Section 165.40 Penal Law. The alleged violation occurred on July 14, 1976, when members of the Fayetteville Police Department went to the home of the Respondent and questioned him concerning a burglary. During that questioning they noticed items which fit the description of some previously reported stolen. The Respondent confessed to the criminal possession of the property. However, it was not until September 20, 1976, that the Fayetteville Police Department brought the matter to the attention of the Probation Department. Subsequently, a petition was filed with the Court on November 3, 1976, more than two months after the act had been committed, and accordingly, Respondent moved to dismiss the petition on the ground that he was denied a speedy trial.

In the matter of Reba C., the petition alleged that the Respondent had committed an act which, if committed by an adult, would have constituted the crime of Assault 2nd Degree, a violation of Section 120.05 Penal Law. The act was alleged to have been committed on August 25, 1976. It was referred to the Probation Department on September 9, 1976. Subsequently, on November 15, 1976, the subject petition was filed. In this case, the Respondent moves that the petition be dismissed on the ground that more than two months passed between the time that the Probation Department had the matter referred to it and the filing of the petition. Therefore, Respondent asserts that Family Court is barred from making a determination of the case.

In each of these cases the outcome of Respondent's motion depends on an interpretation of Section 734(c) Family Court Act. That section provides, in pertinent part, as follows:

Efforts at adjustment, pursuant to rules of court under this section may not extend for a period of more than two months without leave of a judge of the Court, who may extend the period for an additional sixty days.

There are four possible ways in which to interpret the effect of the expiration of the time limitation of Section 734(c) Family Court Act. It can be interpreted as a Statute of Limitations, as a speedy trial provision, as a former jeopardy provision, or as a limitation on the jurisdiction of the Court over the person or matter. The Court finds that the expiration of the two months' time period provided for in the section, without Court extension, removes the subject matter jurisdiction of the Family Court. The reasons for this determination are set forth below.

II. EDWARD W.; STATUTE OF LIMITATIONS

To determine the Respondent's motion in this case the Court must determine when the time period mandated for informal adjustment commences. The Respondent contends that the initiation of the two months' period begins on the commitment of the act, which if done by an adult, would constitute a crime, in that Section 734(c) sets forth a Statute of Limitations provision for filing a petition under Article 7, Family Court Act.

This Court holds that Section 734 is not a Statute of Limitations provision and that the period provided for informal adjustment commences upon the receipt of the referred matter by the Probation Department.

The Statute of Limitations provision under Article 7 is Section 714. It provides that in the case of a person alleged to be in need of supervision, the petition must be filed with the Court prior to the respondent's eighteenth birthday. In the case of a person alleged to be a juvenile delinquent, the section provides that it is in the Court's discretion whether or not to dismiss the petitioner where it has been filed after the respondent has reached his eighteenth birthday. Section 714(b), Family Court Act. By leaving the dismissal of delinquency petitions in the discretion of the Court, instead of mandating a specific time limitation, the Legislature failed to provide the essential element of a Statute of Limitations, which is a precisely determinable period. Accordingly, the right to the use of the Statute of Limitations defense is not available in delinquency proceedings. People v. McAllister, 77 Misc.2d 142, 144, 352 N.Y.S.2d 360, 363 (1974). In the absence of a period of limitations there is no specific time period within which a delinquency petition must be brought. Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, Family Court Act, § 714 (1975); See, People ex rel. Reibman v. Warden of County Jail at Salem, 242 App.Div. 282, 275 N.Y.S. 59 (3rd Dept. 1935).

III. ANDREW N.; SPEEDY TRIAL

Respondent here maintains that he has a constitutional right to a speedy trial and further, that the Legislature enacted Section 734(c), Family Court Act as the enabling section for that right. Further, Respondent asserts, that since more than two months passed between the arrest of the Respondent and the filing of the petition that this right was denied to him and, accordingly, the petition should be dismissed.

In order for this Court to determine Respondent's motion it must initially decide whether a juvenile has a constitutional right to a speedy trial. The Supreme Court of the United States has held that the protections of the Due Process Clause of the United States Constitution (U.S.Const. Art. XIV, § 1) have a role to play in juvenile proceedings, McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1966).

In the McKeiver case, Supra, the Supreme Court declared that the basic requirement for application of the due process standard in juvenile proceedings, as developed by Gault, supra, and Winship, supra, is fundamental fairness. McKeiver v. Pennsylvania, supra, 403 U.S. at p. 543. 91 S.Ct. 1976. In determining 'fundamental fairness', the Supreme Court adopted a balancing test between the procedural constitutional rights accorded a criminally accused with the special procedural system designed to benefit the juvenile. Where the procedural rights disrupt the special system in achieving the goals that the Legislature intended the special nature of the juvenile proceeding overcomes the application of the procedural rights applicable to criminal proceedings.

The right to a speedy trial is a Constitutional right. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The right not only protects the privilege of the accused to prepare a defense and to confront adverse witnesses while their memory is fresh, but it is also meant to relieve the personal and public pressure placed on someone who has become accused. Furthermore, the right to a speedy trial promotes the public interest in the swift administration of justice, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). All the above considerations, with the possible exception of the pressures from publicity, are applicable to the juvenile adjudicatory process. Therefore, granting juveniles the right to a speedy trial would be in accord with the criteria of 'fundamental fairness'.

In applying the balancing test between the procedural due process right of a speedy trial and its effect upon the special juvenile adjudicatory process, this Court concludes that the implementation of the right would affect only the timing of the start of the juvenile adjudicatory process, not its structure. Therefore, it would not disrupt the special procedural system designed to benefit the juvenile, and is, therefore, applicable to Article 7 proceedings.

Having determined that the right to a speedy trial has a role to play in the juvenile justice process, the Court must now consider Respondent's contention that Section 734(c), Family Court Act prescribes the standard to be used to determine when a juvenile's right to a speedy trial has been denied.

The right to a speedy...