In re Andrew L.

• Decision Date: 01 March 2012
• Docket Number: No. D–21217/10.,D–21217/10.
• Citation: 950 N.Y.S.2d 607
• Parties: In the Matter of ANDREW L., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

950 N.Y.S.2d 607

In the Matter of ANDREW L., A Person Alleged to be a Juvenile Delinquent, Respondent.

No. D–21217/10.

Family Court, Queens County, New York.

March 1, 2012.

Michael A. Cardozo, CorporationCounsel(Danielle M. Boccio of counsel), New York City, for Presentment Agency.

Peter E. Tommaso, Kew Gardens, attorney for respondent.

JOHN M. HUNT, J.

Respondent, Andrew L., who was adjudicated to be a juvenile delinquent by order dated March 11, 2011, has moved for an order pursuant to Family Court Act § 355.1 vacating the adjudication of juvenile delinquency and the order of disposition entered on November 30, 2010, and for the entry of an order adjourning this proceeding in contemplation of dismissal pursuant to Family Court Act § 315.3.Alternatively, respondent has moved for an order to seal the record of the juvenile delinquency proceeding pursuant to Family Court Act § 372.2.

By petition filed pursuant to Family Court Act § 310.1(1) on October 6, 2010, Andrew L. was alleged to have committed acts which, were he an adult, would have constituted the crime of Criminal Sexual Act in the Third Degree (Penal Law § 130.40[3] ).¹On November 30, 2010 the petition was amended upon consent of the parties to add a second count, charging respondent with committing an act which would constitute the crime of Sexual Misconduct ( Penal Law § 130.20[2] ).The factual portion of the juvenile delinquency alleged that on Sunday, October 3, 2010 at 12:15 A.M. inside of the residence of respondent's family in Bellerose, New York, the then 15–year–old respondent forced the victim, his then 14–year–old neighbor, to perform oral sex upon him.

Following preliminary proceedings upon the petition, on November 30, 2010respondent entered an admission to having committed an act which would have constituted the crime of Sexual Misconduct in full satisfaction of the petition (Fam. Ct. Act § 321.2[3] ).Following a dispositional hearing, respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act § 352.1 [1] ),² and he was granted a Conditional Discharge for a period of twelve months, conditioned upon his participation in a counseling program to which he would be referred by the Department of Probation, his regular attendance at school, the commission of no further criminal or delinquent acts, and his compliance with the lawful commands of his parents ( Fam. Ct. Act §§ 352.2[1][a]; 353.1).

A

In support of the motion, the attorney for the respondent states that respondent“has successfully completed his junior year of school and is now a senior (report card attached hereto).He has obeyed all the requests of probation, and he has been examined by a counselor (report attached hereto).Andrew is working as a lifeguard this summer, [he] obeys his curfew, and his parents have informed me that they have had no problems with Andrew.”Respondent's report card from his high school for the 4th quarter of the 2010–2011 academic year indicates that he passed all of his courses for the year, and that he was late only two times and absent a total of 5 days for the entire school year.

Appended to the motion is an affidavit from respondent's father attesting to Andrew's continued good behavior at home and at school, and the Court has also been provided with a letter from Andrew's high school Guidance Counselor indicating that he has been respondent's counselor for the past four years, and that he“has worked hard to become a positive member of the [school] community.”The Guidance Counselor further writes that respondent has progressed academically, that his teachers indicate that his behavior and participation in his classes is “positive”, and that respondent has been selected to be a Peer Counselor which will require him to act as an informal mentor for freshman entering the school.

Respondent has also submitted two reports from the therapist who counseled him.The therapist, a Licensed Clinical Social Worker (LCSW) and Certified Alcohol and Substance Abuse Counselor (CASAC), reports that “[i]t is my opinion that Andrew is not in need of psychotherapy.He freely spoke of the incident which led to his arrest and sentencing.He reports no symptoms of anxiety or depression.The consequences of his actions in with the 14 year old girl have caused him to see the seriousness of acting out in a sexual manner.”

In a second and more formal report the social worker indicates that he had a follow-up counseling session with respondent on September 29, 2011 and that he had a telephone conversation with the Dean at respondent's high school.According to the report, when the social worker met with the respondent on September 29, 2011, respondent“stated some of the girl's allegations were false” and that “[w]hen questioned about his responsibility he acknowledged he was trying to persuade the girl to perform oral sex, although he states he did not force her to perform oral sex.”However, Andrew acknowledged that “it was wrong” to “influence a girl to perform a sexual act which she showed reluctance to engage in”, and he understood that persons less than 17 years old were incapable of consenting to engage in sexual activity.

In addition, the social worker observed that the respondent“does not show the defensiveness of an adolescent who denies the seriousness of their actions.In discussing his behavior with past encounters with girls he does not show symptoms of sexual compulsivity or anti-social behavior associated with sex offenders.”The report states that the respondent is “goal oriented” and was applying to colleges, and that he has a girlfriend, that they have had “a few break-ups” but that he“is happy with the relationship.”The Dean at respondent's high school indicated that Andrew was performing well at school and that he presented no behavioral problems.Andrew reported continued good relations with his parents and brothers, and he stated that the incident had become “a public matter” in the community.In closing, the social worker stated that Andrew's “behavior and attitude have changed for the better” and that Andrew “is not in need of psychotherapy at this time.”

Two affirmations were submitted by the Presentment Agency in opposition to the motion.In the first, the Assistant CorporationCounsel indicates that she spoke with the mother of the victim who had discussed respondent's application with both the victim and her father.According to the Assistant CorporationCounsel, “[t]he complainant's mother indicated to the Presentment Agency that her family opposes the respondent's application to grant the respondent an ACD.At the initial disposition, the family did not believe that a CD was appropriate, and therefore, does not believe that the least restrictive dispositional alternative is appropriate either.”³

In the second affirmation, the Presentment Agency refers the Court to a letter written by the victim on September 5, 2011.The letter reads, in pertinent part, that she is opposed to sealing of the court record because “it would be like me having the courage to come forward would be for nothing.If he does something horrible like this again to some other innocent girl it would be like he never was arrested before.”The victim further states that she suffered psychological trauma as a result of the incident, and in her opinion the respondent, more or less, “got off easy” in this case.The victim notes that she continues to suffer because she and the respondent reside in the same neighborhood and she sees him on an irregular basis.The Court has also reviewed once again the victim impact statement which was obtained by Safe Horizon and submitted at the dispositional hearing ( see,Fam. Ct. Act § 351.1[4] ).

B

Related to a court's inherent power over its own orders and judgments (Matter of Delfin A.,123 A.D.2d 318, 320, 506 N.Y.S.2d 215;Bellevue–Santiago v. City Ready Mix, Inc.,270 A.D.2d 441, 705 N.Y.S.2d 275;Quinn v. Guerra,26 A.D.3d 872, 873, 811 N.Y.S.2d 238,app dismissed7 N.Y.3d 741, 819 N.Y.S.2d 875, 853 N.E.2d 246;Matter of Aaron H.,72 A.D.3d 1602, 1603, 898 N.Y.S.2d 901,lv denied15 N.Y.3d 704),Family Court Act § 355.1 specifically authorizes the Court, upon a showing of “a substantial change of circumstances”, to grant a new fact-finding or dispositional hearing, or to “stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article”(Fam. Ct. Act § 355.1[1][a], [b] ).

While the establishment of a substantial change of circumstances is an indispensable prerequisite to obtaining relief pursuant to Family Court Act § 355.1(Matter of Eugene S.,200 A.D.2d 574, 575, 606 N.Y.S.2d 298;Matter of Chaz H.,298 A.D.2d 983, 984, 748 N.Y.S.2d 296;Matter of Barry H.,309 A.D.2d 1147, 764 N.Y.S.2d 893,lv denied1 N.Y.3d 503, 775 N.Y.S.2d 779, 807 N.E.2d 892;Matter of Zachary T .D.,26 A.D.3d 801, 802, 809 N.Y.S.2d 359;Matter of Eric S.D.,37 A.D.3d 1045, 1046, 829 N.Y.S.2d 318;Matter of Jonathan C.,51 A.D.3d 559, 560, 859 N.Y.S.2d 57), the statute does not define that term.Thus, in each case the court must conduct an individualized analysis in order to determine whether there has been a substantial change of circumstances.

In determining whether the Court should grant relief pursuant to Family Court Act § 355.1, the Court observes that the criminal act to which respondent admitted, Sexual Misconduct, is a class B misdemeanor, which as relevant to this case, is committed when a person “engages in oral sexual conduct or anal sexual conduct with another person without such person's consent”(Penal Law § 130.20[2] ).Here respondent and the Presentment Agency stipulated that the lack of consent was based solely upon the victim's lack of capacity to consent due to her age (Penal Law § 130.05[3][a] ), and not based upon any other factor specified by Penal Law § 130.05(3)(b-g), nor forcible compulsion (Penal Law § 130.00[8] ).⁴The only determinations made by ...