MATTER OF JOSEPH G.

CourtNew York Family Court
Citation196 Misc.2d 904,765 N.Y.S.2d 455
Decision Date13 August 2003
PartiesIn the Matter of JOSEPH G., a Person Alleged to be a Juvenile Delinquent, Respondent.

196 Misc.2d 904
765 N.Y.S.2d 455

In the Matter of JOSEPH G., a Person Alleged to be a Juvenile Delinquent, Respondent.

August 13, 2003.


Joseph F. DeFelice, Kew Gardens, for respondent.

Michael A. Cardozo, Corporation Counsel, New York City (Lynn M. Leopold of counsel), presentment agency.

[196 Misc.2d 905]

OPINION OF THE COURT

JOHN M. HUNT, J.

I

Respondent, Joseph G., who is 13 years old, has moved to withdraw his admission to having committed an act which, were he an adult, would constitute the crime of robbery in the first degree, a designated felony act as defined by Family Court Act § 301.2 (8).

By petition filed on May 19, 2003 respondent is alleged to have committed acts which, but for his age, would constitute the crimes of robbery in the first degree, robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, criminal possession of stolen property in the fifth degree, menacing in the second degree, menacing in the third degree, and criminal possession of a weapon in the fourth degree.

On May 19, 2003 respondent and his parents appeared before the court. Because respondent was not represented by counsel the initial appearance upon the petition was adjourned until the following day (Family Ct Act § 320.2 [3]).[1] On May 20, 2003 respondent, his parents, and his retained counsel appeared before the court and the initial appearance upon the petition was conducted. At the conclusion of the initial appearance, respondent's attorney advised the court that the respondent wished to withdraw his denial of the allegations in the petition and to enter an admission to having committed an act which would constitute robbery in the first degree under Penal Law § 160.15 (3), a class B felony and a designated felony act under article 3 of the Family Court Act.

In accordance with Family Court Act § 321.3 the court proceeded to advise respondent of his rights and of the consequences of entering an admission to some of the allegations in the petition. The court first inquired of respondent whether he had heard his attorney's statement that he wished to withdraw his denial of the allegations and that he wished to admit to having committed an act which would constitute the crime of robbery in the first degree, to which the respondent replied "Yes." The court then advised respondent that he did not have

[196 Misc.2d 906]

to make such an admission and whether he understood that and respondent stated that he understood that. Respondent was advised that he had a right to have a trial, to have his attorney cross-examine witnesses called by the prosecutor, and that he would not be required to testify at that trial. Respondent was also informed that the presentment agency bore the burden of proving the allegations in its petition beyond a reasonable doubt. When the court asked respondent whether he understood these rights he replied "yes." Respondent was informed of his right to testify at the trial and also that the court would not draw any inference against him should he decide not to testify, and the court told respondent that "if you admit to me [that] you committed this Robbery in the First Degree there won't be a trial and I will be taking your word for it that you actually did this." When asked whether he understood this, respondent replied "yes."

The court then proceeded to advise respondent of the dispositional consequences which would flow from his making an admission. The court stated that "[i]f you admit that you committed a Robbery in the First Degree, you put yourself in the position where you could be placed away from your home for a period of up to 18 months." Respondent was asked whether he understood this and he indicated "yes."[2] Respondent was further advised that in addition to placement away from home the court had the option of placing him on probation or granting him a conditional discharge.

After advising respondent of his rights and the consequences of his proposed admission, the court addressed respondent's parents and inquired, "is there anything I said to your son that you wish me to clarify for you or for him?" Respondent's father stated "no" and his mother stated "[w]ell, I want him to understand that he's pleading guilty to these cases. I mean, he's being told what to do and if he didn't do it, that he shouldn't plead guilty, but if he did do it." The court then stated that "I'm going to get to that point. I haven't even asked him what happened yet, give me time. I just want to make sure [that] you're understanding what's happening and he understands that * * *." The court then asked respondent "[d]id you see the charges in the petition in this piece of paper that [defense counsel] has in his hand? Did you see what you are charged with?" and respondent stated "no." The court then told

[196 Misc.2d 907]

respondent to have a seat and speak with his attorney, noting that the court was under the impression that respondent's attorney had already reviewed the charge, the proposed admission, and the consequences of that admission with respondent. The respondent's father joined respondent and counsel at the table while counsel spoke with respondent.[3]

When respondent and his counsel completed their private discussion, the court resumed the proceedings. The court stated to respondent that "[t]he petition includes a number of charges which, if they are true, means [that] you committed acts that, if committed by an adult, are very serious felony charges." Respondent was asked whether he understood this and he stated "yes." The court then read the accusatory part of count two of the petition to respondent which charged robbery in the first degree and then asked respondent whether he understood exactly what he was charged with. When respondent indicated that he understood the charge, the court asked him "[w]hat did you do that makes you guilty of doing that?" and respondent stated that the victim "put the chain in my hand" and that he was with another person, Jamal J., at that time and Jamal had "a knife" that respondent was unaware of until Jamal "pulled it out" and pointed it at the victim. According to respondent, he did not approach the victim with the intention of robbing him but approached him with Jamal when Jamal asked the victim for a cigarette. Respondent indicated that when the victim replied to Jamal's request for a cigarette with vulgarity, Jamal decided to rob the victim of his chain and he was present with Jamal during the robbery. Respondent stated that the victim put the chain in his hand and that he and Jamal fled from the scene of the incident together.

The court then reviewed the permissible dispositional options once again reminding respondent that robbery in the first degree "is a designated felony" and that "in this case it means that you would subject yourself to being placed away from your home for approximately 18 months." When respondent was asked whether he understood that, he replied "yes." The court also indicated that respondent could "be placed on probation for a period of two years," and that "[y]ou also run the possibility, depending on the outcome of any later hearing, of restricted placement. You could be placed in restricted placement, meaning that you could actually be locked up in a facility [run] by the Office of Children and Family Services as a result of this."

[196 Misc.2d 908]

When respondent was asked whether he understood this, he replied "yes." The court then accepted respondent's admission to robbery in the first degree in satisfaction of the charges contained in the petition (Family Ct Act § 321.2 [3]),[4] and the proceeding was then continued for a dispositional hearing (Family Ct Act § 321.3 [3]). Pending the dispositional hearing the court paroled respondent from juvenile detention to the custody of his father, John G., under the specific conditions (Family Ct Act § 320.5 [1], [2]; 22 NYCRR 205.25). The court also directed that the Department of Probation conduct a predisposition investigation and report and that respondent submit to a psychological evaluation by the Family Court mental health services clinic prior to the date of the dispositional hearing (Family Ct Act § 351.1 [1]).[5]

On June 30, 2003 respondent, his parents, and his attorney appeared before the court along with the Assistant Corporation Counsel and the dispositional hearing was commenced. Dr. Mitchell Frank, a psychologist with the mental health services clinic, testified that the respondent had been interviewed by him and that he learned that respondent had been subjected to excessive corporal punishment in the home of his father since his parole by this court. In light of Dr. Frank's testimony the respondent was removed from his father's home pending further proceedings, and the Administration for Children's Services was ordered to conduct a child protective investigation concerning the allegations of excessive corporal punishment (Family Ct Act § 1034 [1] [b]). On July 28, 2003 respondent and his parents appeared along with respondent's original counsel and with respondent's present counsel. Upon the motion

[196 Misc.2d 909]

of respondent's original counsel and upon the consent of respondent and his parents counsel was relieved and respondent's present counsel was substituted (CPLR 321 [b] [2]). Respondent's present...

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1 practice notes
  • In the Matter of D.V.S., 2007 NY Slip Op 50044(U) (N.Y. Fam. Ct. 1/12/2007), xx07.
    • United States
    • New York Family Court
    • January 12, 2007
    ...(1st Dept 1996), in which the Family Court did not advise the respondent of the dispositional alternatives; In the Matter of Joseph G., 196 Misc 2d 904 (Family Court of New York, Queens Cty 2003) in which the court did not properly explain to the defendant the ramifications of a guilty plea......
1 cases
  • In the Matter of D.V.S., 2007 NY Slip Op 50044(U) (N.Y. Fam. Ct. 1/12/2007), xx07.
    • United States
    • New York Family Court
    • January 12, 2007
    ...(1st Dept 1996), in which the Family Court did not advise the respondent of the dispositional alternatives; In the Matter of Joseph G., 196 Misc 2d 904 (Family Court of New York, Queens Cty 2003) in which the court did not properly explain to the defendant the ramifications of a guilty plea......

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