G., Matter of
| Decision Date | 22 November 1977 |
| Citation | 92 Misc.2d 126,399 N.Y.S.2d 862 |
| Parties | In the Matter of Patrick G., a person alleged to be a juvenile delinquent, Respondent. |
| Court | New York Family Court |
Howard E. Pachman, County Atty., Suffolk County by Harry Flood, Asst. County Atty., Hauppauge, for petitioner.
John F. Middlemiss, Jr., Legal Aid Society by Daniel J. McGonigle, Hauppauge, for respondent.
When this court on September 30, 1977 ruled on respondent's motion to dismiss the petition herein, it was extremely concerned over the fact that it appeared that the Probation Department, after having received a referral from the Juvenile Aid Service, had delayed its adjustment efforts for almost four months. The court thereupon made inquiries with reference to this alleged adjustment delay with the Deputy Director in charge of the Family Court Unit of the Suffolk County Probation Department. His memorandum to the court dated October 14, 1977 with supporting documentation indicates that a referral from Juvenile Aid Service was received by the Probation Department on January 17, 1977, that immediately thereafter on January 18, 1977 a letter was sent to the juvenile and his parents inviting them to discuss the matter with the Family Court Intake Unit of the Department of Probation, that on January 26, 1977 the juvenile's parents contacted the Department of Probation and were interviewed by a probation officer, and that, when adjustment efforts failed, the Department of Probation closed its case on March 17, 1977 and requested a petition from the Juvenile Aid Service, which was precisely two months after the referral had been received. The petition from the Juvenile Aid Service was finally received by the Probation Department on April 20, 1977. It was filed with the court on April 22, 1977. Respondent still contends that more than two months passed between the time that the Probation Department received a referral of the matter and the filing of the petition.
In view of the additional facts which have been made available to the court, it will now consider respondent's motion de novo.
In this matter it is alleged that on October 12, 1976 respondent committed acts which would constitute, if respondent had been an adult, the crime of Arson 3rd Degree, a violation of Section 150.10 of the Penal Law of the State of New York.
The respondent moves for a dismissal upon the grounds that he has been denied a speedy trial in violation of his constitutional rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article 30 and Section 170.30(1)(e) of the Criminal Procedure Law and further that this court lacks jurisdiction over the subject matter because of the Suffolk County Probation Department's failure to comply with Section 734(c) of the Family Court Act. That Section, entitled "Rules of Court for preliminary procedure", provides in paragraph "c" thereof 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". (Underlining supplied)
The court file reflects that the respondent was apprehended and placed in custody on October 16, 1976 and released to guardian (parents) on the same day about one hour later. The petition herein was sworn to on October 16, 1976. Although it is not clear from the material contained in the file, the respondent's moving papers allege that the Department of Probation delayed the adjustment procedure substantially in excess of the statutory limit of sixty days. The petition was filed with the court on April 22, 1977. Respondent appeared in court for the first time on May 13, 1977.
Citing Matter of Reba C., 89 Misc.2d 570, 392 N.Y.S.2d 208, the respondent contends that Section 734(c) of the Family Court Act is jurisdictional in nature and that expiration of the two month adjustment period prior to the filing of a petition precludes a court from acquiring jurisdiction. The respondent argues that the procedure provided for by the statute must be strictly followed and "petitions filed contrary to this provision are beyond the competency of the Family Court to hear", Matter of Reba C., supra, 89 Misc.2d at p. 576, 392 N.Y.S.2d at p. 214.
This court finds that respondent's contention is untenable. There is absolutely nothing in the language of Section 734 or in any other Section of Article 7 of the Family Court Act to infer that the intent of the Legislature was to divest the Family Court of jurisdiction over the subject matter whenever a probation department permits the allotted adjustment period under Section 734(c) to expire. The legislative history concerning Section 734 is minimal. Moreover, a perusal of the applicable Legislative Reports, Legislative Memoranda, Messages of the Governor, or Governor's Memoranda in the Session Laws of New York State since the adoption of the Family Court Act in 1961 (L.1962, c. 686; L.1975, c. 836, section 3; L.1976, c. 878, section 6) likewise fails to reveal a scintilla of evidence to support the respondent's position. Thus, there does not appear to be anything in the circumstances surrounding the enactment of Section 734 which would indicate that its language does not mean what it clearly seems to say.
Besides, to hold as respondent reasons would in effect equate Section 734(c) of the Family Court Act with a unique kind of statute of limitations that would under facts as alleged in this case negate the provisions of Section 714 of the Family Court Act, which provides that, "in determining the jurisdiction" in a juvenile delinquency proceeding, the court may dismiss or entertain the petition when it is filed after the respondent reaches the age of eighteen and must dismiss a petition to determine whether a person in need of supervision once the respondent reaches the age of eighteen. Section 714 is the only section in the Family Court Act that prescribes any sort of period of limitation in juvenile proceedings, and the fact that the period of limitation with respect to persons in need of supervision is unusually broad and jurisdiction totally discretionary regardless of time periods in the case of the juvenile delinquent who reaches the age of eighteen cannot be ignored. In view of this, it is inconceivable that the Legislature intended to deprive the court of its jurisdiction thorough even in the case where a probation department permitted a mere one day delay beyond the sixty day adjustment period through the operation of a statute whose language concerning adjustment merely appears to be permissive rather than mandatory.
It should be noted further that "Rules of court for preliminary procedure" (underlining supplied) similar in content to Section 734 are also found in Sections 424 and 823 of the Family Court Act. In fact the language in Section 424(c) is exactly like that of Section 734(c), and the only difference between Section 823(c) and Section 734(c) is that Section 823(c) allows the granting of two successive extensions of time for adjustment instead of the one. In none of these sections is there any mention of the adjustment process limiting in anyway the jurisdiction of the court. It would certainly be absolutely absurd to believe that in an Article 4 or Article 8 proceeding the court would lose jurisdiction over the subject matter if the probation department continued its adjustment efforts beyond the statutory limits.
Divestiture of jurisdiction, since that sort of liability alone, according to the case cited by respondent (Matter of Reba C., supra), could insure compliance with Section 734(c), is a drastic consequence to impose on a court because of an agency's failure to follow strictly preliminary procedures. Surely, the court can hold any agency or any employee thereof accountable for acts which frustrate the objects of the Family Court Act (Section 255 of the Family Court Act). Is it necessary therefore in these cases to try to extract from a statute a meaning that is not there and be left with a strained and tortuous interpretation of a clear and unambiguous statute? Section 734 neither specifically mentions jurisdiction nor alludes to it in any manner whatsoever and certainly does not mention the adjustment process as limiting in any way the jurisdiction of the court.
On August 9, 1975 on approving L.1975, c. 836, the Governor stated: "Adjustment at intake is a useful tool in diverting young offenders from the court system, and in providing appropriate services to such youths." Evidently, Section 734 was intended to provide a mechanism for the adjustment of suitable cases and thus obviate the necessity of filing a petition in matters over which the court ordinarily would have jurisdiction. The section was designed obviously to divert juvenile offenders to a less threatening alternative which would be free of any stigmatization. The Legislature in adopting Section 734 had to be thinking in terms of delinquency prevention and the diversion of juveniles from the more coercive formal procedures which must follow the filing of a petition. This fortuitously is consonant with today's trend on emphasizing diversion and developing more resources to divert and keep juveniles, whenever possible, away from the formal methods of the juvenile justice system. Surely, any needless interpretation of Section 734 which would in any way thwart this salutary course in our juvenile proceedings should be avoided.
Finally, some consideration should be given to the victim of the delinquency act and to "the need for protection of the community"...
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