In The Matter Of Docket Number D-16836/10 Kaminski G.

• Decision Date: 02 September 2010
• Docket Number: D-16836/10
• Citation: In re Kaminski G., 2010 NY Slip Op 20366, D-16836/10 (N.Y. Fam. Ct. Sep 02, 2010)
• 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

2010 NY Slip Op 20366

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

D-16836/10

New York Family Court Queens County

Decided on September 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]), Robbery in 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 NY2d 927, 928; Matter of Detrece H, 78 NY2d 107, 109-110; Matter of Jahron S., 79 NY2d 632, 640; Matter of Edward B., 80 NY2d 458, 460; Matter of Neftali D., 85 NY2d 631, 634). 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 NY2d 211, 214-215; People v. Fullan, 92 NY2d 690, 692). 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 Degree and 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 NY2d 390, 395; Matter of Schumer v. Holtzman, 60 NY2d 46, 52; Matter of Holtzman v. Goldman, 71 NY2d 564, 573; People v. Harper, 75 NY2d 313, 318), 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 (NY 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 NY2d 277, 282; Matter of Rainbow v. Swisher, 72 NY2d 106, 109; Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366; Matter of H.M. v. E.T., 14 NY3d 521, 526; Matter of Leonora M. v. Krauskopf, 104 AD2d 755, 756; Matter of Brian L. v. Administration for Children's Services, 51 AD3d 488, 500, lv denied 11 NY3d 703; Matter of John M.S. v. Bonni L.R., 49 AD3d 1235; King v. State Education Department, 182 F3d 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 of 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 NY2d 543, 547; see, e.g., People v. Lewis, 260 NY 171). However in 1978 "in reaction to a perceived epidemic of violent criminal conduct by juveniles... the Legislature criminalized' several serious acts committed by thriteen-, fourteen-, and fifteen-year-old youths" (Matter of Raymond G., 93 NY2d 531, 534-535 [citation omitted]). As a result of the 1978 statutory amendments "juveniles between the 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; see, Matter of Equcon M., 291 AD2d 332; United States v. Smith, 2010 WL 1879714 at 2 [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 Courtoriginal 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; see, People v. Killeen, 198 AD2d 233, lv denied 82 NY2d 926). 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 NY2d 949; Matter of Michael M., 3 NY3d 441; Matter of Kemar G., 72 AD3d 965, lv denied ___ NY3d ___, 2010 NY Slip Op 80944 [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 warranting more lenient treatment and transfer to the Family Court" (Vega at 551).

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 NY3d 653, 660; People v. Ballman, 15 NY3d 68, 72; Yellow Book of New York, Inc. v. Commissioner of Taxation and Finance, 75 AD3d 931), and in both Vega v. Bell and Matter of Raymond G., the Court found that the 1978 statutory amendments enacted by the Legislature were intended to divest the Family Court of original jurisdiction over persons 13, 14 or 15 years of age who committed an act which was defined as a juvenile offense and to which the defense of infancy could not be asserted (Raymond G. at 536; Vega at 551). In suchcases Family Court has no jurisdiction unless the criminal action is removed to the Family Court in accordance with the provisions of article 725 of the Criminal Procedure Law (Raymond G. at 535).

In Matter of Travis Y. (27 Misc 3d 557), this Court concluded that it was impermissible for a presentment agency to file a juvenile delinquency petition against a 14-year-old male charging only acts which are not defined as juvenile offenses where the non-hearsay factual allegations in the victim's supporting deposition established, if true, that the perpetrator committed the crime of Rape in the First Degree, which is a juvenile offense and for which the defense of infancy was...