John P., Matter of

• Decision Date: 05 May 1980
• Citation: 74 A.D.2d 403,427 N.Y.S.2d 447
• Parties: In the Matter of JOHN P. (anonymous), Respondent-Respondent. Appeal of W. R. BRESNAHAN, Petitioner.
• Court: New York Supreme Court — Appellate Division

Page 447

427 N.Y.S.2d 447

74 A.D.2d 403

In the Matter of JOHN P. (anonymous), Respondent-Respondent Appeal of W. R. BRESNAHAN, Petitioner.

Supreme Court, Appellate Division, Second Department.

May 5, 1980.

Marc L. Parris, County Atty., New City (Gary L. Lipton, Suffern, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Robert J. Schack and George D. Zuckerman, Asst. Attys. Gen., New York City, of counsel; Ann Horowitz, New York City, on brief), intervenor pro se.

Before LAZER, J. P., and RABIN, GULOTTA and O'CONNOR, JJ.

GULOTTA, Justice.

The question raised by this appeal, which appears to be one of first impression, is whether the petitioner in a juvenile delinquency proceeding may constitutionally appeal an enforceable dispositional order of the Family Court on the ground, inter alia, that it was not supported by a preponderance of the evidence (see Family Ct. Act, § 745). The gravamen of appellant's position is that the order of the Family Court was unduly lenient in declining to place the respondent in a residential treatment center.

For reasons which shall hereinafter appear, the question must be answered in the negative and the appeal dismissed.

On the petition of W. R. Bresnahan, a Youth Officer employed by the Orangetown Police Department, respondent herein, John P., was charged with the commission of acts which, if done by an adult, would have constituted the crimes of burglary in the third degree, grand larceny in the third degree and criminal mischief in the fourth degree, as well as a violation of section 265.05 of the Penal Law ("unlawful possession of weapons by persons under sixteen"). Following a fact-finding hearing, respondent was adjudicated a juvenile delinquent and a dispositional hearing was ordered. That hearing was commenced on September 7, 1978 and continued on September 14, 1978, at which time the court announced its decision and entered an order placing respondent on probation for a period of one year and imposing extensive terms and conditions, including the requirements that he (1) receive therapy at the Orangetown Mental Health Clinic and (2) make restitution in the amount of $780. Insofar as it appears on the present record, that dispositional order was never stayed (see Family Ct. Act, §§ 762 and 1114), so that the term of probation was due to expire by September 14, 1979. In the absence of any indication to the contrary, the foregoing will be assumed to be the fact, and thus the probationary period is now at an end.

Although nothing particularly unusual had yet occurred, the nature of the case changed somewhat radically when the prosecuting agency, the Rockland County Attorney's Office (see Family Ct. Act, § 254; see, also, Family Ct. Act, § 254-a), filed a notice of appeal challenging the dispositional order of the Family Court on the ground, inter alia, that the order placing respondent on probation was not supported by a preponderance of the evidence as required by section 745 of the Family Court Act and that the evidence adduced at the dispositional hearing preponderated in favor of a "harsher" disposition, to wit, placement in a residential treatment center. In point of fact, then, appellant's "bedrock" position is that the order of disposition was unduly lenient in that it failed to adequately consider "the needs and best interests of the respondent as well as the need for (the) protection of the community" (Family Ct. Act, § 711). The appeal has been taken pursuant to section 1112 of the Family Court Act, which provides, inter alia :

"An appeal may be taken as of right from any order of disposition and, in the discretion of the appropriate appellate division, from any other order under this act."

While cognizant of the fact that the statute, as written, would not appear to restrict the right of appeal to the respondent in delinquency proceedings initiated pursuant to article 7 of the Family Court Act (cf. Family Ct. Act, §§ 762 and 764), we perceived a possible constitutional problem with regard to the application of the statute to the instant appeal. Accordingly, by letter dated September 10, 1979, we invite the Attorney-General to intervene and brief the constitutional question (see CPLR 1012, subd. (b)). That invitation was accepted in due course and a brief filed. ¹

In our view, it would be violative of the constitutional prohibition against double jeopardy to permit the petitioner in proceedings initiated pursuant to article 7 of the Family Court Act to appeal an enforceable dispositional order of the Family Court for the purpose of having the severity of that order increased, whether on appeal or following a remand to the Family Court.

As the United States Supreme Court has only recently observed (Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346), "(j)eopardy denotes risk." In the constitutional sense, therefore, jeopardy describes the type of risk which traditionally has been associated with criminal prosecutions, but now, by virtue of the court's decision in the Breed case (supra ), has been expanded to include juvenile proceedings such as the one involved in the instant case. Thus, as the court observed (supra, at p. 529, 95 S.Ct. at p. 1785):

"We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years."

In this respect, then, juvenile proceedings have been placed on a par with adult criminal proceedings, as the court concluded that it "(could) find no persuasive distinction (in terms of the kind of risk to which jeopardy refers) * * * between (a delinquency) proceeding * * * and a criminal prosecution, each of which is designed 'to vindicate (the) very vital interest in (the) enforcement of (the) criminal laws." United States v. Jorn (400 U.S. 470), (, 91 S.Ct. 547, 27 L.Ed.2d 543,) supra, at 479 (, 91 S.Ct. at 554)" (Breed v. Jones, supra, at p. 531, 95 S.Ct. at p. 1786).

Co-ordinate with the scope of the risk subscribed by the concept of jeopardy as just discussed, it has been said that the constitutional prohibition against "double jeopardy" in fact encompasses three distinct constitutional protections, any of which may be applicable in a particular case. Thus, as the court remarked in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656:

"(It) protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense " (emphasis supplied; see, also, Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187. ²

Needless to say, it is this last protection which is implicated in the case under review, for here there will be no second trial (as was the case in Breed ), but rather, if appellant should prevail, a new dispositional order (whether or not preceded by a hearing) substituting that which, in all candor, may well constitute a different, more severe measure of discipline (cf. Breed v. Jones, supra, at pp. 529-530 and n.12, 95 S.Ct. at pp. 1785-86; Matter of Winship, 397 U.S. 358, 365-366, 90 S.Ct. 1068, 1073-74, 25 L.Ed.2d 368; Matter of Gault, 387 U.S. 1, 36, 50, 87 S.Ct. 1428, 1448, 1455, 18 L.Ed.2d 527) for the one already validly imposed by the Family Court and suffered by the respondent. ³ In this regard, the controlling constitutional principle was laid down more than 100 years ago in the landmark case of Ex parte Lange, 18 Wall. (85 U.S.) 163, 168-169, 173, 21 L.Ed. 872, wherein Mr. Justice Miller observed for the majority:

"If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.

"The principle finds expression in more than one form in the maxims of the common law. In civil cases the doctrine is expressed by the maxim that no man shall be twice vexed for one and the same cause. Nemo debet bis vexari pro una et eadem causa. It is upon the foundation of this maxim that the plea of a former judgment for the same matter, whether it be in favor of the defendant or against him, is a good bar to an action.

"In the criminal law the same principle, more directly applicable to the case before us, is expressed in the Latin, 'Nemo bis punitur pro eodem delicto,' or, as Coke has it, 'Nemo debet bis puniri pro uno delicto.' No one can be twice punished for the same crime or misdemeanor, is the translation of the maxim by Sergeant Hawkins.

"Blackstone in his Commentaries, cites the same maxim as the reason why, if a person has been found guilty of manslaughter of an indictment, and has had benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed.

"Of course, if there had been no punishment the appeal would lie, and the party would be subject to the danger of another form of trial. But by reason of this universal principle, that no person shall be twice punished for the same offense, that ancient right of appeal was gone when the punishment had once been suffered. The protection against the action of the same court in inflicting punishment twice must surely be as necessary, and as clearly within the maxim, as protection from chances or danger of a...