People ex rel. Wayburn v. Schupf

• Decision Date: 10 March 1975
• Citation: 365 N.Y.S.2d 235,39 NY2d 682,47 A.D.2d 79
• Parties: The PEOPLE, etc., ex rel. Robert F. WAYBURN, Law Guardian, on behalf of Richard L. (anonymous), Appellant, v. Harriet SCHUPF, Acting Director of Detention Services, Human Resources Administration, Juvenile Center for Boys, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 235

365 N.Y.S.2d 235

47 A.D.2d 79

The PEOPLE, etc., ex rel. Robert F. WAYBURN, Law Guardian, on behalf of Richard L. (anonymous), Appellant, v. Harriet SCHUPF, Acting Director of Detention Services, Human

Resources Administration, Juvenile Center for

Boys, Respondent.

Supreme Court, Appellate Division, Second Department.

March 10, 1975.

Charles Schinitsky, Brooklyn (Robert F. Wayburn, Brooklyn, of counsel), for appellant.

William B. Richland, New York City (no brief submitted) for respondent.

Before MARTUSCELLO, Acting P.J., and CHRIST, MUNDER and SHAPIRO, JJ.

PER CURIAM.

This appeal is from a judgment of the Supreme Court, Kings County, which dismissed a habeas corpus proceeding and the writ therein. The judgment should be modified, on the law, by adding thereto a provision that the dismissal is solely on the ground of mootness.

On January 24, 1975 a juvenile delinquency petition was filed in Family Court, Kings County, charging the 15-year-old petitioner with acts which, if committed by an adult, would constitute the crimes, among others, of robbery and unlawful possession of a weapon. The petitioner appeared in court with his mother, a law guardian was assigned and a denial to the allegations of the petition was entered. Over the law guardian's objection, the proceeding was adjourned to January 28, 1975 and the petitioner was remanded to the Juvenile Center. A corespondent was paroled.

On January 28, 1975 the corespondent's attorney requested an adjournment. Both the petitioner's attorney and the Assistant Corporation Counsel opposed the application, the latter also opposing a severance. The Family Court was informed that the petitioner's remand had been recommended by the Probation Department because at the time he allegedly committed the instant offense he was on parole from a prior finding on a petition which alleged that he was a person in need of supervision and was, therefore, considered dangerous to the community.

The court then told the petitioner's attorney that it was 'going to make some law.' Noting that a Supreme Court Justice (Brownstein, J.) had recently held subdivision (b) of section 739 of the Family Court Act to be unconstitutional, as a denial of equal protection of the laws, insofar as it authorized preventive detention of juveniles (People ex rel. Wayburn on behalf of Charles L. v. Schupf, 1974, 80 Misc.2d 730, 365 N.Y.S.2d 110), the court stated that it would grant bail to the juvenile as it would to an adult. Over the objection of the petitioner's attorney on the ground that he was ready for trial, the court set bail at $500 on 'the basis that he will not return for trial if paroled.' Although the petitioner's attorney contended that the bail was excessive, the court advised him to pursue his legal remedies and adjourned the proceeding to January 31, 1975. However, immediately thereafter the petitioner was found in contempt of court, bail was vacated and he was 'sentenced to Spofford to 1--31--75.' The allegedly contemptuous conduct consisted of the petitioner's backing away from a court officer, shaking him off and then pushing the door on his way out of the courtroom, all at the conclusion of the hearing. The petitioner's attorney protested, but to no avail, and the next day he commenced this habeas corpus proceeding.

While this appeal was pending, an adjudicatory hearing was held in the juvenile delinquency proceeding and, upon his own admission, the petitioner was found to have committed an act which, if committed by an adult, would have constituted robbery in the second degree. He was then paroled to the custody of his mother, pending a dispositional hearing. Although the petitioner is no longer being detained, his appeal raises an issue of substantial public importance which is likely to recur. Therefore, we decline to dismiss the appeal as moot (People ex rel. Guggenheim v. Mucci, 32 N.Y.2d 307, 310, 344 N.Y.S.2d 944, 945, 298 N.E.2d 109, 110).

The Family Court is without power to fix bail for juvenile respondents. Section 153 of the Family Court Act (which is contained within the 'General Powers' part of article 1) does authorize the court 'to admit to, fix or accept bail'; but that section speaks of compelling the attendance, not of a juvenile respondent, but rather of an 'adult respondent (or child or any other person whose testimony or presence at a hearing or proceeding is deemed * * * necessary)' (bracketing supplied). Succeeding sections, namely, sections 155 and 155--a, deal with the arrest and admission to bail of only adult respondents, not juvenile respondents. Article 7 of the Family Court Act, which governs juvenile proceedings, nowhere mentions any power to...