In the Matter of Gordon B.

• Citation: 920 N.Y.S.2d 798,83 A.D.3d 1164,2011 N.Y. Slip Op. 02766
• Parties: In the Matter of GORDON B., Alleged to be a Juvenile Delinquent.William Favreau, as Clinton County Attorney, Respondent;Gordon B., Appellant.(And Another Related Proceeding.).
• Decision Date: 07 April 2011
• Court: New York Supreme Court Appellate Division

83 A.D.3d 1164
920 N.Y.S.2d 798
2011 N.Y. Slip Op. 02766

In the Matter of GORDON B., Alleged to be a Juvenile Delinquent.William Favreau, as Clinton County Attorney, Respondent;Gordon B., Appellant.(And Another Related Proceeding.).

Supreme Court, Appellate Division, Third Department, New York.

April 7, 2011.

[920 N.Y.S.2d 800]

Aaron Turetsky, Keeseville, for appellant.Van Crockett, Clinton County Department of Social Services, Plattsburgh, for respondent.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.EGAN JR., J.

[83 A.D.3d 1164] Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.), entered May 11, 2010, which, in two proceedings pursuant to Family Ct. Act article 3, denied respondent's motion to dismiss the petitions, (2) from two orders of said court, entered June 14, 2010, which granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 3, to adjudicate respondent a juvenile delinquent, and (3) from two orders of said court, entered June 15, 2010, which [83 A.D.3d 1165] placed respondent in the custody of the Clinton County Department of Social Services.

In March 2010, respondent (born in 1997) was charged in two petitions, each alleging acts perpetrated on separate victims which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree and endangering the welfare of a child. The charges stemmed from the allegations of respondent's two younger male cousins (born in 1998 and 1999) that, during late July or early August 2009, respondent engaged in anal sexual conduct with them by forcible compulsion. Respondent was arrested in relation to these charges in August 2009, and the Clinton County Probation Department referred the matter to petitioner in September 2009. In March 2010, petitioner commenced these proceedings.

Respondent moved to dismiss both petitions based on petitioner's delay in filing them. Family Court denied the motion with respect to each petition and, after conducting a fact-finding hearing, determined that, with respect to each victim, respondent had engaged in acts which, had he been an adult, would constitute the crimes of criminal sexual act in the first degree and endangering the welfare of a child. After a dispositional hearing, Family Court adjudicated respondent a juvenile delinquent and directed that he be placed in the custody of the Clinton County Commissioner of Social Services for approximately one year. Respondent now appeals from all five orders.¹

Initially, we address respondent's argument that Family Court erred in denying his motion to dismiss the petitions. This Court has recently held that, while the speedy trial provisions set forth in Family Ct. Act article 3 only apply after a petition is filed, “[p]repetition delay, however, may result in an unconstitutional denial of due process” ( Matter of Richard JJ., 66 A.D.3d 1152, 1153, 888 N.Y.S.2d 627 [2009]; see Family Ct. Act § 310.2; Matter of Benjamin L., 92 N.Y.2d 660, 667–669, 685 N.Y.S.2d 400, 708 N.E.2d 156 [1999]; cf.

[920 N.Y.S.2d 801]

People v. Staley, 41 N.Y.2d 789, 791, 396 N.Y.S.2d 339, 364 N.E.2d 1111 [1977] ). “To determine whether a respondent's due process rights were violated by a delay in filing, the court must engage in a balancing of factors, including the extent of the delay, the reasons for the delay, the nature of the charges, the extent of the prefiling detention, prejudice to the defense due to the delay, any special mental or emotional needs of the juvenile, [83 A.D.3d 1166] and the need for and possibility of success of rehabilitation” ( Matter of Richard JJ., 66 A.D.3d at 1153, 888 N.Y.S.2d 627 [citations omitted] ), and no one factor is determinative ( see id.). “When applying this balancing test, courts must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings” ( id. [internal quotation marks...