In the Matter of Travis Y.

• Decision Date: 01 March 2010
• Citation: 27 Misc.3d 557,896 N.Y.S.2d 638,2010 N.Y. Slip Op. 20067
• Parties: In the Matter of TRAVIS Y., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

27 Misc.3d 557
896 N.Y.S.2d 638
2010 N.Y. Slip Op. 20067

In the Matter of TRAVIS Y., A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, Queens County, New York.

March 1, 2010.

[896 N.Y.S.2d 638]

Michael A. Cardozo, Corporation Counsel (Meredith Salvaggio of counsel), New York City, for Presentment Agency.Victor Knapp, attorney for respondent.

[896 N.Y.S.2d 639]

JOHN M. HUNT, J.

[27 Misc.3d 558] By petition filed pursuant to Family Court Act § 310.1, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Rape in the First Degree, Sexual Abuse in the First and Third Degrees, Rape in the Third Degree, Forcible Touching and Sexual Misconduct.

Specifically, the juvenile delinquency petition filed with this Court alleges that on January 2, 2010 in Queens County the respondent, who was born on May 27, 1995, committed multiple sex offenses against the victim, who is alleged to have been born on February 12, 1998.¹ The supporting deposition of the alleged victim states, in pertinent part, that at approximately 12:00 A.M. on January 2, 2010 inside of a private residence:

the respondent put his fingers inside of my vagina and moved them in and out. I kept telling him to stop. He then put his penis inside of my vagina and kept it in there for a few minutes. I kept telling him to stop. I kept trying to get up but I couldn't because the respondent kept pushing me back down. I didn't tell him it was okay to do any of this. When he took his penis out of my vagina, my vagina felt wet. The respondent later told me not to tell anyone.

I was born on February 12, 1998 and I turned eleven years old on my last birthday. When this happened to me, I was eleven years old. On the day this happened, the respondent was taller, stronger and older than me.

The parties appeared for an initial appearance upon the juvenile delinquency petition on February 1, 2010 and the proceedings were adjourned in accordance with Family Court Act § 320.2(1) so that the Court could consider whether it has jurisdiction[27 Misc.3d 559] over this juvenile delinquency proceeding. At the time of respondent's appearance for the initial appearance on February 1, 2010, the Court observed that the non-hearsay factual allegations in the victim's supporting deposition, if true, establish that the respondent, who was 14 years old on January 2, 2010, committed an act which would constitute the completed crime of Rape in the First Degree against the 11 year old victim, ² that the

[896 N.Y.S.2d 640]

defense of infancy is inapplicable to a charge of Rape in the First Degree committed by a person who is 13 years of age or older, and that such a charge constitutes a juvenile offense as defined by Penal Law § 10.00(18) and Criminal Procedure Law § 1.20(42). Given that the Family Court lacks jurisdiction to entertain a juvenile delinquency proceeding in which the respondent is alleged to have committed a juvenile offense absent a removal of the charges to the Family Court by a criminal court, it was not apparent that this Court has jurisdiction to entertain this proceeding.

The Constitution and the Family Court Act grant “exclusive original jurisdiction” over juvenile delinquency proceedings to the Family Court (N.Y. Const., art. VI, § 13; Fam. Ct. Act §§ 114; 115[a][vi] ). ³

Family Court Act § 301.2 defines a “juvenile delinquent” as [27 Misc.3d 560] “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] ).

Accordingly, a juvenile delinquent is either: (i) a person between the ages of seven and sixteen who commits an act which, if committed by an adult, would constitute a crime ( i.e., a misdemeanor or felony) ( Matter of Natasha C., 80 N.Y.2d 678, 680, 593 N.Y.S.2d 986, 609 N.E.2d 526 [1993]; Matter of Victor M., 9 N.Y.3d 84, 87, 845 N.Y.S.2d 771, 876 N.E.2d 1187 [2007] ), (ii) or a person who is the defendant in a criminal action which is removed from a criminal court to the Family Court in accordance with article 725 of the Criminal Procedure Law ( see, Matter of Desmond J., 93 N.Y.2d 949, 950, 694 N.Y.S.2d 338, 716 N.E.2d 173 [1999]; Matter of Michael M., 3 N.Y.3d 441, 445–446, 788 N.Y.S.2d 299, 821 N.E.2d 537 [2004] ).

“Prior to September 1, 1978, children under the age of 16 were not subject to criminal sanctions in New York State 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 [1979]; see e.g., People v. Lewis, 260 N.Y. 171, 183 N.E. 353 [1932] ). However, in 1978 “[i]n 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 [1999] [internal citation omitted] ). As a result of the 1978 amendments to the Family Court Act, Penal Law and Criminal Procedure law, “juveniles between the ages of 13 and 15 who

[896 N.Y.S.2d 641]

are charged with certain enumerated, serious crimes of violence are now classified as juvenile offenders and are prosecuted within the adult criminal justice system” ( Matter of Vega v. Bell 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 [2002] ).

In creating the status of “juvenile offender” (Penal Law § 10.00 [18]; Criminal Procedure Law § 1.20[42] ), the Legislature sought “to control violent juvenile crime in the face of what was considered to be the failure of the traditional means of treating the problem” ( Matter of Vega v. Bell at 548, 419 N.Y.S.2d 454, 393 N.E.2d 450), and the 1978 statutory amendments “criminaliz[ed] certain juvenile offenses through divestiture of Family Court original jurisdiction ... by recasting[27 Misc.3d 561] 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” ( Matter of 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 [1993], lv. denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488 [1994] ).⁴

Accordingly, under the present statutory regime, a person 13, 14 or 15 years of age who is accused of having committed a juvenile offense is “now automatically prosecuted within the adult criminal justice system unless there exist certain special circumstances warranting more lenient treatment and transfer to the Family Court” ( Matter of Vega v. Bell at 551, 419 N.Y.S.2d 454, 393 N.E.2d 450 [emphasis added] ). Therefore, where a youth of 13, 14 or 15 years of age has committed one or more of the specified violent crimes which have been designated as juvenile offenses, that youth must be prosecuted in accordance with the statutory regime governing youthful offenders. Compliance with the youthful offender procedures, which include the opportunity to obtain removal of the criminal action to the Family Court at various stages of a criminal action, is mandatory because “the Legislature [has] divested the Family Court of original jurisdiction over such acts in favor...