Gregory M, Matter of

• Decision Date: 01 May 1986
• Citation: 131 Misc.2d 942,502 N.Y.S.2d 570
• Parties: In the Matter of GREGORY M, A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 570

502 N.Y.S.2d 570

131 Misc.2d 942

In the Matter of GREGORY M, A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, New York City Bronx County.

May 1, 1986.

Frederick A.O. Schwarz, Jr., Corp. Counsel by Howard I. Sanders, Bronx, for petitioner.

Lenore Gittis, The Legal Aid Society by Natalie Albert, Bronx, for respondent.

BRUCE M. KAPLAN, Judge:

Gregory M was placed on probation on two dockets followi findings of sexual abuse in the first degree, and sexual abuse in the third degree respectively. A violation petition was subsequently filed, and a hearing was held before this Court pursuant to Family Court Act § 360.3.

At the conclusion of the hearing the Court rendered decision, finding by a preponderance of the competent evidence that the Respondent had violated the terms and conditions of his probation.

In their summations counsel vigorously disputed the question of the applicable standard of proof. Since the language of F.C.A. § 360.3 does not provide guidance, the Court deemed that it would be of interest to bench and bar to issue this supplemental memorandum.

In seeking to determine the Legislative intent with respect to standard of proof recourse to the practice commentary to F.C.A. § 360.3 proved singularly unhelpful. Professor Merril Sobie, a consultant in the drafting of Article 3 observed that there appears to be a conflict within the Family Courts as to whether violations must be proven beyond a reasonable doubt, or can be based upon only a preponderance of the evidence, the test prescribed for adult criminal violations. He opined that in the absence of a statutory standard, the issue should be determined by the appellate courts. McKinney's Cons. Law of N.Y. Book 29A Part 1, Practice Commentary Family Court Act § 360.3. This decision squarely addresses this issue in order to provide an appropriate vehicle for appellate review and guidance.

In 1982 the Legislature redrafted the juvenile delinquency article which now appears as Article 3 of the Family Court Act. It removed juvenile delinquency from Article 7 which is now limited to PINS matters.

Post dispositional procedures are subsumed in part 6 of article 3, and deal, inter alia, with petition of violation, hearing on violation, as well as appeals. Its drafting represents a significant improvement both in form and substance over Family Court Act § 779. ¹

Indeed F.C.A. § 779 provides that if the Court is satisfied by competent proof that the Respondent without just cause failed to comply with the terms and conditions of probation it may revoke the order of probation, and proceed to make any order that would have been made at the time the order of probation was entered. The section is lamentably silent with respect to such niceties as notice and an opportunity to be heard, standard of admissibility of evidence, and other delineations of the Respondent's rights including his right to be represented by counsel.

F.C.A. § 360.3 is far more detailed. It mandates the standard of admissibility of evidence, entitlement to counsel, and entitlement to be notified of that right. It vouches safe to the Respondent the right of cross examination, and presenting evidence on his own behalf.

It has been noted that § 360.3 is similar in import to CPL § 410.70, and that it should be read in conjunction with Family Court Act § 303.1(2). ²

CPL § 410.70, sub. 3 is more detailed than Family Court Act § 360.3. Indeed it specifies that the burden of proof shall be preponderance of the evidence.

Both practical and conceptual considerations dictate that the standard of proof in Family Court parole revocation hearings also should be a preponderance of the evidence.

F.C.A. § 360.3 details the procedure for a hearing on violation and differs from dispositional hearings in only two respects: It provides that only relevant, competent and material evidence may be received, and is silent about the standard of proof. F.C.A. § 350.3 provides for the admissibility of evidence that is material and relevant and requires proof by a preponderance of the evidence. There appears to be no particular reason for the imposition of a more stringent standard of admissibility.

It is true that the Legislature did not specify the standard of proof in Part 6. Therefore it may be argued that it intended a different standard of proof than preponderance of the evidence. However such a conclusion would be illogical. While Part 6 is concerned with post dispositional procedures, it also encompasses appeals as well as the manner in which a person shall be supervised. Most importantly § 360.3 sub. 6 is a hybrid procedure for it mandates that the Court determine whether there has been a violation of probation, and if it revokes probation, requires it to order a different disposition in that same hearing.

It would be anomalous to impose a different burden of proof for making an order of disposition where there had already been a prior disposition which had been revoked than the one applicable at the original dispositional hearing. Indeed if there were to be a discrepancy between standards of proof it seems to me that a higher standard of proof should be required at the initial hearing rather than a subsequent one.

It may be that the failure to specify a standard of proof was an oversight in drafting. The Legislature is respectively requested to amend F.C.A. § 360.3 by engrafting the preponderance standard found in C.P.L. § 410.70, sub. 3.

It was earlier noted that F.C.A. § 360.3 was sufficiently similar to C.P.L. § 410.70, sub. 3 to permit consideration of decisions interpreting that provision.

Those decisions make clear that the preponderance of evidence standard is a wholly appropriate one. In the first place C.P.L. § 410.70(3) codified existing law when it specified the preponderance of evidence standard. See 6 Zett NY Crim. Practice § 47.5(1).

When this standard has been challenged on due process grounds New York Courts have found it to be constitutional. Peo. v. Howland, 108 A.D.2d 1019, 485 N.Y.S.2d 589 (3rd Dept., 1985); Peo. v. Morse, 96 A.D.2d 654, 466 N.Y.S.2d 521 (3rd Dept.1983).

In Peo. v. Morse, supra, the Court relied on two United States Supreme Court cases which delineated the nature of a parole and a probation violation hearing.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 279 the Supreme Court considered the requirements for procedural due process in hearings of this nature.

While recognizing the need for certain minimum standards the Court explicitly stated that these hearings, conceptually indistinguishable from each other, were not stages of a criminal proceeding.

The Gagnon Court went on to note that a probationer convicted of a crime has a more limited due process right than an accused in a criminal trial.

In a footnote it observed that a juvenile charged with a crime is differently situated from an already convicted probationer, and entitled to a higher degree of protection. It contrasted In re Winship, 397 U.S. 358 90 S.Ct. 1068, 25 L.Ed.2d 368 where the standard of proof in juvenile delinquency proceedings must be proof beyond a reasonable doubt.

The citation to In re Winship, supra is of particular value to the analysis of the instant question. It stands squarely for the proposition that proof beyond a reasonable doubt is an essential of due process and fair treatment at the adjudicatory stage of a juvenile delinquency proceeding (Emphasis supplied).

The reference also underscores the Supreme Court's recognition that a probation revocation hearing is not a part of the adjudicative process in juvenile delinquency proceedings, but rather is dispositional in nature.

The concurring opinion of Justice Harlan in In re Winship is instructive on why New York promulgated the preponderance standard in CPL § 410.70, subd. 3.

It was quoted in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 and in turn quoted in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1380, 71 L.Ed.2d 599:

"In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Court by a unanimous vote of the participating Justices, declared: "The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.' " Id., at 423, 99 S.Ct. at 1808, quoting: In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)."

455 U.S. at 754, 102 S.Ct. at 1395.

Justice Harlan prefaced those remarks by stating: "the choice of standard ... does ... reflect a very fundamental assessment of the comparative social cost of erroneous factual determinations." 397 U.S. at 370, 90 S.Ct. at 1075.

He went on to note:

"The standard of proof influences the relative frequency of these two types of erroneous outcomes. If, for example, the standard of proof for a criminal trial were a preponderance of the evidence rather than proof beyond a reasonable doubt, there would be a smaller risk of factual errors that result in freeing guilty persons, but a far greater risk of factual errors that result in convicting the innocent. Because the standard of proof affects the comparative frequency of these two types of erroneous outcomes, the choice of the standard to be applied in a particular kind of litigation should, in a rational world, reflect an assessment of the comparative social disutility of each."

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