Noel N., Matter of
| Citation | 465 N.Y.S.2d 1008,120 Misc.2d 380 |
| Parties | In the Matter of NOEL N. 1 , Alleged to be a Juvenile Delinquent, Respondent. |
| Decision Date | 08 August 1983 |
| Court | New York Family Court |
May a Family Court Judge grant immunity from prosecution to a juvenile witness in a delinquency proceeding when requested to do so by the Corporation Counsel? This question raises important issues concerning the applicability of the Criminal Procedure Law (hereafter "CPL") immunity provisions to Family Court proceedings, as well as related constitutional and policy considerations affecting the Family Court's powers in relation to immunity grants. For the reasons detailed below, this court holds that the Family Court lacks the power to grant a Corporation Counsel request to immunize its own witness in a delinquency proceeding. 2
At the time of the hearing on this matter, Family Court Act Article 7 was in effect. On July 1, 1983 Article 7 was repealed and a new Article 3 entitled "Juvenile Delinquency" took effect.
For purposes of this decision, the court utilizes the provisions of Article 7, applicable to the hearing on this matter, but also takes into account the provisions of Article 3 as they relate to the issues raised by this case.
The instant petition alleged that respondent Noel N. committed acts, which if done by an adult, would constitute the various crimes of assault in the Second and Third Degrees, Reckless Endangerment in the First and Second Degrees, and Criminal Possession of a Weapon in the Fourth Degree. After a lengthy fact-finding hearing, the court dismissed the petition in its entirety for failure to prove the allegations beyond a reasonable doubt.
In the course of the hearing, a witness for the respondent, aged 14, testified in regard to the incident alleged in the petition. During the Corporation Counsel's cross-examination of this witness, it became apparent to the court that the witness might, by continuing to respond to the line of questioning, provide information which could form the basis of a juvenile delinquency petition against him. Under these circumstances, the court intervened and appointed counsel for the witness in order to assure that the witness' privilege against self-incrimination would be adequately protected. After conferring with counsel, the witness invoked his privilege against self-incrimination and declined to respond to certain further questions by Corporation Counsel. Corporation Counsel thereupon requested that the court, pursuant to CPL § 50.30, confer immunity upon the witness. The Corporation Counsel's application was opposed by both respondent's Law Guardian and by counsel appointed for the witness. The court heard oral argument on the question by opposing counsel.
In her argument, Corporation Counsel relies heavily upon the case of Matter of Barry M., 93 Misc.2d 882, 403 N.Y.S.2d 979 in which the Family Court, Queens County, held that CPL § 50.30 is applicable to Family Court proceedings, and that the court is empowered to grant immunity, at least upon application by the District Attorney. Opposing counsel argue that Matter of Barry M. is inapposite to the instant proceeding and that, in any event, the Family Court lacks the necessary specific authority to grant the immunity requested by Corporation Counsel.
CPL § 50.30 provides: "In any criminal proceeding, other than a grand jury proceeding, the court is a competent authority to confer immunity in accordance with the provisions of section 50.20, but only when expressly requested by the district attorney to do so." (Emphasis added). Whether the Family Court may confer immunity pursuant to CPL § 50.30, or alternatively, whether the Family Court may confer immunity in the absence of express statutory authority, requires a brief review of the nature of immunity doctrines as they have evolved at both the state and federal level.
The basic purpose of immunity statutes is to allow the government to compel witness' testimony in the face of the constitutional privilege against self-incrimination (both the Fifth Amendment of the Federal Constitution and Section 6 of Article I of the New York State Constitution set forth the constitutional privilege). In this sense immunity statutes represent an attempt to balance the legitimate need of the government to compel testimony in furtherance of its prosecutorial authority versus the right of witnesses to claim their self-incrimination privilege. There are two general types of immunity statutes: so-called "transactional" immunity which precludes future prosecution of a witness for any crimes referred to in the witness' testimony, and so-called "use and derivative use" immunity which, more narrowly, only precludes the prosecution from later using the witness' specific testimony or information so derived from such testimony.
The current federal immunity statute, 18 U.S.C. § 6002, which provides that the court may confer immunity upon application of the United States Attorney, is of the "use and derivative use" type. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) the Supreme Court held that such "use and derivative use" immunity statutes are constitutional in that they provide immunity protection that is sufficient coextensive with the constitutional privilege. The type of immunity conferred under the CPL is of the broader transactional type (CPL § 50.10). It is also important to note that the federal immunity statute is similar in structure to its New York State CPL counterpart in that the court is authorized under both statutes to grant immunity, but only upon application of the prosecutor (in the former, the United States Attorney, and in the latter, the district attorney).
The Family Court is a court of strictly limited jurisdiction, and the court may not act beyond the scope of powers specifically given it. Matter of Borkowski, 38 A.D.2d 752, 330 N.Y.S.2d 106 (2nd Dept.1972). Within the framework of the Family Court Act, hereafter ("FCA"), there presently exists only one specific provision concerning immunity grants. That provision appears in Article 10 of the FCA, which governs child abuse and neglect proceedings. Section 1014(d) of Article 10 authorizes the Family Court to grant the respondent testimonial immunity in any subsequent criminal court proceeding. See Matter of Vance A., 105 Misc.2d 254, 432 N.Y.S.2d 137. There is no provision concerning immunity in any of the other sections of the FCA, including FCA Article 7 which governs delinquency proceedings. Corporation Counsel argues in the present case that, notwithstanding the silence of FCA Article 7 concerning immunity, numerous provisions of the CPL have been held applicable to Family Court proceedings. Moreover, argues Corporation Counsel, Matter of Barry M., specifically held CPL § 50.30 applicable to a Family Court delinquency proceeding.
It is of course true that juvenile delinquency proceedings have been long recognized as at least quasi-criminal in nature, and that juveniles are entitled to similar constitutional protections afforded adults in criminal proceedings. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). However, not every right applicable in an adult criminal proceeding is applicable to a juvenile. The question is whether the constitutional or statutory right in question relates to "fundamental fairness" and to the protection of the juvenile. Therefore, there is no blanket application of the CPL, and each application must be decided on a case by-case basis. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Matter of D., 27 N.Y.2d 90, 313 N.Y.S.2d 704, 261 N.E.2d 627 (1970); Matter of Tony W., 91 Misc.2d 700, 398 N.Y.S.2d 528 (1977). It is within the context of In Re Gault and its progeny that three New York cases have held the CPL immunity provisions applicable to Juvenile or PINS (Article 7) proceedings. Two of these cases,Matter of DeGaglia, 54 Misc.2d 423, 282 N.Y.S.2d 627, and Matter of Jaime T., 96 Misc.2d 173, 408 N.Y.S.2d 901 involved juveniles who, prior to the Family Court proceeding, had testified previously before a Grand Jury and were therefore automatically granted immunity pursuant to CPL § 190.40. Both cases held that since a similarly situated adult subsequent to the grand jury proceeding, would be barred from sentencing, a juvenile should be afforded the same right to be free from a subsequent Family Court dispositional order. Both these cases, which involved a juveniles' appearance before a grand jury with attendant automatic conferral of immunity, are readily distinguishable from the instant case where the question presented is whether a juvenile witness, who is neither a respondent nor had previously appeared before a grand jury, is entitled to immunity. The third case holding the CPL immunity provisions applicable, Barry M., is far more similar to the instant proceeding in that the immunity request to the court by the petitioner concerned the petitioner's witness who had not been involved in a prior Grand Jury proceeding. The court's decision in Barry M., CPL § 50.30 applicable requires further scrutiny.
It should be noted that the petitioner in Barry M. was the district attorney, rather than the Corporation Counsel as in the instant case, since the former matter involved a designated felony. See FCA § 254-a. However, the application of CPL § 50.30 to Family Court proceedings should not turn on this narrow distinction between petitioners, or on the type of allegation in the petition, but rather rests on the more fundamental considerations outlined in this opinion.
The court in Barry M., after first noting the quasi-criminal nature of juvenile delinquency proceedings and the...
To continue reading
Request your trial
-
Andres A. v. Judith N.
...108 A.D.2d 402, 489 N.Y.S.2d 332 (2nd Dept.1985), aff'd, 69 N.Y.2d 919, 516 N.Y.S.2d 629, 509 N.E.2d 324 (1987); Matter of Noel N., 120 Misc.2d 380, 465 N.Y.S.2d 1008 (1983); Family Court Act Section Family Court Act Article 5 entitled "Paternity Proceedings" is the only Article that provid......