In re Kaminski G.

• Decision Date: 02 September 2010
• Citation: 908 N.Y.S.2d 328,29 Misc.3d 805
• Parties: In the Matter of Docket Number D-16836/10 KAMINSKI G., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

908 N.Y.S.2d 328

29 Misc.3d 805

In the Matter of Docket Number D-16836/10 KAMINSKI G., A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, Queens County, New York.

Sept. 2, 2010.

Michael A. Cardozo, Corporation Counsel (Latoya S. Jeffers of counsel), New York City, for Presentment Agency.

Nadeen Gayle, Brooklyn, attorney for respondent.

JOHN M. HUNT, J.

By petition filed pursuant to Family Court Act § 310.1 on September 1, 2010 the respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Robbery in the First Degree, Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, Criminal Possession of a Weapon in the Fourth Degree, and Menacing in the Second Degree. The Court conducted the initial appearance upon the petition, counsel was appointed for the respondent, and the Court directed that respondent be detained by the New York City Department of Juvenile Justice until the next court day for further proceedings.

The juvenile delinquency petition, including its sole supporting deposition, reflects that the charges set forth in this petition arose out of an incident which is alleged to have occurred in Queens County on August 3, 2010 during which it is claimed that the respondent, who is 14 years old, and two unknown accomplices forcibly stole property which included a wallet, an I-Pod touch, an Amazon Kindle, car keys, and a motor vehicle from the victim. The petition specifically alleges that the respondent possessed, used or threatened the immediate use of a dangerous instrument, a baseball bat, in order to effectuate the forcible taking of property.

The non-hearsay factual allegations in the victim's supporting deposition establish, if true, that the respondent committed acts which, were he an adult, would constitute the completed crimes of Robbery in the First Degree (P.L. § 160.15[3] ), Robberyin the Second Degree (P.L. § 160.10[1] ), Grand Larceny in the Fourth Degree (P.L. § 155.30[5] ), Criminal Possession of Stolen Property in the Fifth Degree (P.L. § 165.40), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[2] ), and Menacing in the Second Degree (P.L. § 120.14[1] ).

Family Court Act § 315.1 provides for the dismissal of jurisdictionally defective juvenile delinquency petitions ( see, Matter of David T., 75 N.Y.2d 927, 928, 555 N.Y.S.2d 675, 554 N.E.2d 1263; Matter of Detrece H., 78 N.Y.2d 107, 109-110, 571 N.Y.S.2d 899, 575 N.E.2d 385; Matter of Jahron S., 79 N.Y.2d 632, 640, 584 N.Y.S.2d 748, 595 N.E.2d 823; Matter of Edward B., 80 N.Y.2d 458, 460, 591 N.Y.S.2d 962, 606 N.E.2d 1353; Matter of Neftali D., 85 N.Y.2d 631, 634, 628 N.Y.S.2d 1, 651 N.E.2d 869). Insofar as relevant, this section of the statute reads as follows:

1. A petition of a count thereof is defective when:

(a) it does not substantially conform to the requirements stated in sections 311.1 and 311.2 ...

(b) the allegations demonstrate that the court does not have jurisdiction over the crime charged (italics added); or

(c) the statute defining the crime is unconstitutional or otherwise invalid.

2. An order dismissing a petition as defective may be issued upon the motion of the respondent or of the court itself.

In this case, the non-hearsay factual allegations in the victim's supporting deposition establish, if true, that the respondent and his two accomplices forcibly stole property from the victim and that during the commission of the crime respondent used or threatened the immediate use of a dangerous instrument (a baseball bat) in order to effectuate the forcible taking of the victim's property ( see generally,People v. Miller, 87 N.Y.2d 211, 214-215, 638 N.Y.S.2d 577, 661 N.E.2d 1358; People v. Fullan, 92 N.Y.2d 690, 692, 685 N.Y.S.2d 901, 708 N.E.2d 974). The accusatory portion of the juvenile delinquency petition ( i.e., the verified petition) charges respondent with the commission of 5 completed crimes including Robbery in the Second Degree, Grand Larceny in the Fourth Degree and Menacing in the Second Degree, and in the sixth count respondent is also charged with having committed an act which would constitute the crime of Attempted Robbery in the First Degree.

Given the factual allegations in the supporting deposition, the charge of Attempted Robbery in the First Degree appears to be inconsistent with the counts charging the completed acts of Robbery in the Second Degree, Grand Larceny in the Fourth Degreeand Menacing in the Second Degree. While a prosecutor is authorized to determine who and what to prosecute as well as the specific crimes with which a defendant will be charged ( People v. Zimmer, 51 N.Y.2d 390, 395, 434 N.Y.S.2d 206, 414 N.E.2d 705; Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 52, 467 N.Y.S.2d 182, 454 N.E.2d 522; Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297; People v. Harper, 75 N.Y.2d 313, 318, 552 N.Y.S.2d 900, 552 N.E.2d 148), the prosecutor cannot draft an accusatory instrument in order to evade limitations placed upon the subject matter jurisdiction of a court.

The Family Court is vested with "exclusive original jurisdiction" over juvenile delinquency proceedings (N.Y. Const., art. VI, § 13; Fam. Ct. Act §§ 114, 115[a][vi] ), however the Family Court is nevertheless a court of limited jurisdiction ( Kleila v. Kleila, 50 N.Y.2d 277, 282, 428 N.Y.S.2d 896, 406 N.E.2d 753; Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258; Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471; Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206; Matter of Leonora M. v. Krauskopf, 104 A.D.2d 755, 756, 480 N.Y.S.2d 479; Matter of Brian L. v. Administration for Children's Services, 51 A.D.3d 488, 500, 859 N.Y.S.2d 8, lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198; Matter of John M.S. v. Bonni L.R., 49 A.D.3d 1235, 854 N.Y.S.2d 259; King v. State Education Department, 182 F.3d 162, 163 [2d Cir.1999] ). The Legislature has clearly defined the scope of the Family Court's jurisdiction over juvenile delinquents who are defined as "a person over seven and less than sixteen years of age, who, having committed an act that would constitute a crime if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action ordered removed from a criminal court pursuant to article seven hundred twenty-five of the criminal procedure law" (Fam. Ct. Act § 301.2[1] ).

"Prior to September 1, 1978, children under the age of 16 were not subject to criminal sanctions in New York in any circumstances. Instead, juveniles who performed acts which would have been crimes had they been committed by adults, were all dealt with through a separate juvenile delinquency system" ( Matter of Vega v. Bell, 47 N.Y.2d 543, 547, 419 N.Y.S.2d 454, 393 N.E.2d 450; see, e.g., People v. Lewis, 260 N.Y. 171, 183 N.E. 353). However in 1978 "in reaction to a perceived epidemic of violent criminal conduct by juveniles ... the Legislature criminalized' several serious acts committed by thirteen-, fourteen-, and fifteen-year-old youths" (Matter of Raymond G., 93 N.Y.2d 531, 534-535, 693 N.Y.S.2d 482, 715 N.E.2d 486 [citation omitted] ). As a result of the 1978 statutory amendments "juveniles betweenthe ages of 13 and 15 who are charged with certain enumerated, serious crimes of violence are now classified as juvenile offenders' and are prosecuted within the adult criminal justice system" ( Vega at 547, 419 N.Y.S.2d 454, 393 N.E.2d 450; see, Matter of Equcon M., 291 A.D.2d 332, 737 N.Y.S.2d 622; United States v. Smith, 376 Fed.Appx. 140, 142-143 [2d Cir., 2010] ).

The 1978 legislation deprived certain offenders of the defense of infancy and classified these offenders as "juvenile offenders" who are subject to criminal prosecution for the commission of any crimes enumerated by statute (Penal Law §§ 10.00[18]; 30.00[2]; Criminal Procedure Law § 1.20[42] ). ¹ As observed in Matter of Raymond G., the 1978 statutory amendments "criminaliz[ed] certain juvenile offenses through divestiture of Family Court original jurisdiction ... by recasting the Family Court Act definition of juvenile delinquent to exclude them, while at the same time making correlative revisions to the Penal Law to render juvenile offenders subject to criminal prosecution" ( Raymond G. at 535, 693 N.Y.S.2d 482, 715 N.E.2d 486; see, People v. Killeen, 198 A.D.2d 233, 603 N.Y.S.2d 510, lv. denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488). In addition to creating the status of juvenile offender, the 1978 legislation created a process under which criminal charges filed against a juvenile offender could be "removed" to the Family Court at various stages of a criminal prosecution ( Criminal Procedure Law § 725.00- § 725.20; Matter of Desmond J., 93 N.Y.2d 949, 694 N.Y.S.2d 338, 716 N.E.2d 173; Matter of Michael M., 3 N.Y.3d 441, 788 N.Y.S.2d 299, 821 N.E.2d 537; Matter of Kemar G., 72 A.D.3d 965, 898 N.Y.S.2d 518, lv. denied 15 N.Y.3d 704, 2010 N.Y. Slip Op. 80944, 2010 WL 3397058 [August 30, 2010] ). Thus, under the present statutory regime, a person 13, 14 or 14 years old who commits one of the acts denominated as a "juvenile offense" is "now automatically prosecuted within the adult criminal justice system unless there exist special circumstances warrantingmore lenient treatment and transfer to the Family Court" ( Vega at 551, 419 N.Y.S.2d 454, 393 N.E.2d 450).

When presented with a question of statutory interpretation a court's primary consideration is to ascertain and to give effect to the intention of the Legislature ( Matter of DaimlerChrysler Corporation v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705; People v. Ballman, 15 N.Y.3d 68, 72, 904 N.Y.S.2d 361, 930 N.E.2d 282;Yellow Book of New York, Inc. v. Commissioner of Taxation and...