Joe A., Matter of

• Decision Date: 05 December 1996
• Citation: 653 N.Y.S.2d 221,171 Misc.2d 241
• Parties: In the Matter of JOE A., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

Page 221

653 N.Y.S.2d 221

171 Misc.2d 241

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

Family Court, New York County.

Dec. 5, 1996.

Legal Aid Society (Jane Spinak and Randall K. Walker, of counsel), Law Guardian.

Paul A. Crotty, Corporation Counsel of New York City (Nina T. Pirrotti, of counsel), for presentment agency.

MARY E. BEDNAR, Judge.

I

By petition filed on October 24, 1996, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Escape in the First Degree (Penal Law § 205.15), Escape in the Second Degree (P.L. § 205.10[1], [2] ), and Escape in the Third Degree (P.L. § 205.05). ¹

The petition alleges that by order of the Family Court, Bronx County (Marjory D. Fields, J.), dated August 26, 1996, respondent was adjudicated a juvenile delinquent (see, Fam.Ct.Act § 352.1[1] ), and placed in the custody of the New York State Division for Youth for a period of up to eighteen months upon the court's finding that he had committed a felony (see, Fam.Ct.Act §§ 353.3[1]; 353.5[5]; Executive Law § 507-a[1][a] ). In accordance with the Family Court's order of disposition, the Division for Youth placed the respondent with the Berkshire Farm ² facility for a period of up to six months (see, Fam.Ct.Act § 353.3[4], [9]; see also, Social Services Law §§ 472-k; 472-m). ³

The petition further alleges that, on October 9, 1996, while respondent was placed with the Division for Youth and in the custody of Berkshire Farm (see, Social Services Law § 472-m), he was transported to the New York County Family Court by Berkshire Farm staff members, in accordance with a court order, so that he could be present for an initial appearance upon a juvenile delinquency petition (see, Fam.Ct.Act § 320.1), arising out of an incident which occurred in July 1996, where it is alleged that respondent committed acts which would constitute, inter alia, Grand Larceny in the Fourth Degree (P.L. § 155.30), a class E felony.

According to a supporting deposition by Staley B. Keith, an employee of Berkshire Farm, he and other staff members arrived at the New York County Family Court building on the morning of October 9, 1996. Shortly after their arrival, respondent requested breakfast and Mr. Keith escorted him from the building to a sidewalk vendor who was located in front of the courthouse. Then, Mr. Keith and the respondent reentered the courthouse and "the [r]espondent and I stood side by side as we waited on line to enter the metal detectors. I momentarily turned my back on the [r]espondent ... [w]hen I turned around to address the [r]espondent, I saw him standing in a doorway of the courthouse and instructed him to get back on line. I turned my back on him again momentarily and, seconds later, when I turned around again, the [r]espondent had vanished." Mr. Keith further states that "[r]espondent did not return to Manhattan Family Court that day, nor did he return to Berkshire Farms voluntarily."

Following respondent's return to the custody of Berkshire Farm, this petition charging him with escape was filed.

Respondent has moved for dismissal of the four escape counts on the ground that the counts are jurisdictionally defective, and that the allegations in the petition demonstrate that the Family Court does not have jurisdiction over the escape charges. Respondent contends that Berkshire Farm is not a "detention facility" within the meaning of Penal Law § 205.00(1); that he has never been charged with or convicted of a felony, nor has he been arrested for, charged with, or convicted of, a class C, D or E felony. Respondent further alleges that he did not escape from "custody", as that term is defined by Penal Law § 205.00(2), on October 9, 1996.

The Presentment Agency contends that because respondent was placed in the custody of the Division for Youth on October 9, 1996, his escape from the control of the staff members from Berkshire Farm at the Family Court building was both an escape from a "detention facility", as well as an escape from "custody". The Presentment Agency further states that respondent's appearance at the New York County Family Court on October 9, 1996, was in connection with a charge for a class E felony arising out of the July 1996 incident.

II

A person may be adjudicated a juvenile delinquent where it is determined that he or she has committed an act which, were it committed by an adult, would constitute a crime (see, Fam.Ct.Act §§ 301.2[1]; 345.1[1]; Matter of Thomas RR., 64 N.Y.2d 1062, 1063, 489 N.Y.S.2d 875, 479 N.E.2d 220). However, certain offenses ⁴ defined by the Penal Law are expressly excluded from the Family Court's juvenile delinquency jurisdiction (see, Matter of Anna "AA", 36 A.D.2d 1001, 321 N.Y.S.2d 59 [harassment]; Matter of Kevin G., 71 Misc.2d 312, 335 N.Y.S.2d 788 [fourth degree criminal trespass (now P.L. § 140.05) ]; Matter of Christopher B., 122 Misc.2d 377, 471 N.Y.S.2d 228 [disorderly conduct]; Matter of Charles M., 143 A.D.2d 96, 531 N.Y.S.2d 346 [disorderly conduct] ), and other offenses, although crimes ⁵, are excluded by the nature of the crime and its constituent elements (see, Matter of Natasha C., 80 N.Y.2d 678, 593 N.Y.S.2d 986, 609 N.E.2d 526 [bail jumping offenses are inapplicable to juvenile delinquents]; cf., People v. Holmes, 220 A.D.2d 109, 645 N.Y.S.2d 115 [juvenile offenders may be charged with bail jumping] ).

The question therefore, is whether the Legislature has intended that any of the grades of the crime of escape apply to persons like respondent, who are alleged to be or have been adjudicated juvenile delinquents. If it appears that one or more of the escape crimes applies to such juveniles, it must be determined whether each count sets forth a prima facie case of respondent's commission of that crime.

III

In order for each count of a juvenile delinquency petition to meet the test of jurisdictional sufficiency, there must be nonhearsay allegations that establish, if true, every element of the offense charged and the respondent's commission of the offense (see, Fam.Ct.Act § 311.2[3]; Matter of Jahron S., 79 N.Y.2d 632, 639, 584 N.Y.S.2d 748, 595 N.E.2d 823; Matter of Rodney J., 83 N.Y.2d 503, 507, 611 N.Y.S.2d 485, 633 N.E.2d 1089; Matter of Wesley M., 83 N.Y.2d 898, 899, 613 N.Y.S.2d 853, 636 N.E.2d 1386).

The rationale for the statutory requirement that the petition and each of its counts set forth a prima facie case is to "assure that there exists a sound and supportable basis for subjecting the accused to a trial" (Matter of Edward B., 80 N.Y.2d 458, 464, 591 N.Y.S.2d 962, 606 N.E.2d 1353 [citation omitted] ), given that there is no independent review of the evidence prior to the filing of the juvenile delinquency petition (see, Matter of Edward B., 80 N.Y.2d, at 464, 591 N.Y.S.2d 962, 606 N.E.2d 1353, supra; Matter of Rodney J., 83 N.Y.2d, at 506, 611 N.Y.S.2d 485, 633 N.E.2d 1089, supra; see also, Matter of Detrece H., 78 N.Y.2d 107, 110, 571 N.Y.S.2d 899, 575 N.E.2d 385).

Under the facts of this case, as alleged in the petition, the Presentment Agency cannot establish that respondent committed an act which, were he an adult, would constitute the crime of Escape in the First Degree. Moreover, the elements of this crime indicate that it is inapplicable to juvenile delinquents.

Insofar as relevant, Penal Law § 205.15 provides:

A person is guilty of escape in the first degree when:

1. Having been charged with or convicted of a felony, he escapes from a detention facility.

The crime of Escape in the First Degree under Penal Law § 205.15(1) is comprised of two elements: (i) that the accused have been charged with or convicted of a felony, and (ii) that the accused escape from a detention facility. The first element, which is a necessary predicate for the second element, cannot be established by the Presentment Agency in this proceeding.

Respondent's prior adjudication as a juvenile delinquent by the Bronx County Family Court does not constitute a "conviction" for a felony, although he was found to have committed acts which would have constituted a felony but for his age (see, Fam.Ct.Act § 380.1[1]; Matter of Andre B., 215 A.D.2d 159, 160, 626 N.Y.S.2d 114; Holyoke Mutual Insurance Co. v. Jason B., 184 A.D.2d 550, 552, 585 N.Y.S.2d 61; see also, People v. Gray, 84 N.Y.2d 709, 715, 622 N.Y.S.2d 223, 646 N.E.2d 444 [Levine, J., concurring] ). Moreover, although respondent was being produced at the New York County Family Court on October 9, 1996 in connection with a juvenile delinquency petition which contained an allegation that he committed an act which would, but for his age, constitute a felony, because juvenile delinquents are not "charged" with felonies, but rather are alleged to have committed acts which were they an adult, would constitute a felony, there can be no finding that respondent was "charged with a felony" on the date he allegedly escaped (see, Matter of Natasha C., 80 N.Y.2d, at 681, 593 N.Y.S.2d 986, 609 N.E.2d 526, supra; People v. Gray, 84 N.Y.2d, at 715, 622 N.Y.S.2d 223, 646 N.E.2d 444, supra ).

Therefore, because Count One is jurisdictionally defective, and because it is clear that the Legislature has not intended that the crime of Escape in the First Degree under Penal Law § 205.15(1) apply to juvenile delinquents, that count is dismissed (see, Fam.Ct.Act § 315.1[1][a], [b]; Matter of Natasha C., 80 N.Y.2d, at 681, 593 N.Y.S.2d 986, 609 N.E.2d 526, supra ).

Count Two of the petition alleges that respondent has committed an act which, were it committed by an adult, would constitute the crime of Escape in the Second Degree under Penal Law § 205.10(1), which reads, insofar as pertinent:

A person is guilty of escape in the second degree when:

1. He escapes from a detention facility.

This crime is committed by escaping from a detention facility. "Escape" means to get away, break away, or get free (see, People v. Hutchinson, 56 N.Y.2d 868, 870, 453...