People v. Harris

• Decision Date: 11 March 1982
• Citation: 448 N.Y.S.2d 961,113 Misc.2d 46
• Parties: The PEOPLE of the State of New York v. William J. HARRIS, Defendant.
• Court: New York County Court

Page 961

448 N.Y.S.2d 961

113 Misc.2d 46

The PEOPLE of the State of New York v. William J. HARRIS, Defendant.

Suffolk County Court.

March 11, 1982.

Patrick Henry, Dist. Atty., Suffolk County, Riverhead (Frederick Eisenbud, Asst. Dist. Atty., Riverhead, of counsel), for the People.

George M. Harmel, Jr., Commack, for defendant.

MEMORANDUM

JOHN V. VAUGHN, Judge.

Defendant, having plead guilty to the charge of attempted criminal possession of a weapon in the third degree now moves for an order dismissing the indictment and transferring the subject matter of that indictment to the Family Court.

On the complaint of his wife, defendant was arrested on June 1, 1981 for the charges of criminal possession of a weapon in the third degree and menacing. He was subsequently indicted on the weapons charge and on November 2, 1981, plead guilty to attempted criminal possession of a weapon in the third degree in full satisfaction of that indictment. Thereafter, the defendant requested an adjournment of his sentence in order to make this motion.

The basis for the defendant's motion is that just prior to the sentencing he learned for the first time that his wife had never been advised that she had a right to choose the forum in which to proceed, to wit, the Family Court or the Criminal Court (Family Court Act § 812, CPL 530.11). In support of his motion, the defendant submits an affidavit from his wife in which she states that no one had advised her of her right to proceed against her husband in either the Family or the Criminal Court, and that if she had been so advised she would have selected the Family Court. She further alleges that the defendant works at two jobs to support her and the children and requests that the present prosecution be transferred to the Family Court.

The People concede that the arresting officer did not advise the complainant of her rights under the statute. The officer explained that he had not done so because he felt that the weapons charge did not fall within the meaning of the statute. He further alleged that he had advised the complainant in the past of her rights to choose the Family Court in connection with other incidents. The People argue that the motion should be denied because the defendant's plea of guilty waived any procedural defect, and, in the alternative, that the weapons charge does not fall within the enumerated crimes specified in the statute (Family Court Act § 812).

The issues thus presented to the court are (1) whether a failure to advise a complaining spouse of her rights under the statute may be availed of by the defendant, and (2) whether the weapons charge falls within the meaning of the statute giving the injured spouse the right to choose to proceed in either the Family Court or the Criminal Court.

A review of the statutory scheme in existence prior to September 1, 1977 is helpful in placing the present provisions in proper perspective. Under the State Constitution and the implementing legislation in existence at that time, the family court was given exclusive original jurisdiction of enumerated family offenses (New York Constitution, Art. 6, § 13; former Family Court Act § 812). If a criminal action were instituted in the criminal courts it had to be transferred to the family court for disposition (former Family Court Act, § 813). While the family court was empowered to retransfer a proper matter to the criminal courts (former Family Court Act, § 816), the failure to initially institute the proceeding in the family court would vitiate any criminal conviction (People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180). Under this framework, it was the court, and not the victim, which decided the ultimate appropriate forum.

In 1977 the Legislature, in response to criticism, abolished the former court-dominated transfer provisions in favor of an initial election by the aggrieved spouse to proceed in either the family court or the criminal court. Under this scheme, concurrent jurisdiction of enumerated family offenses was placed in both the family and criminal court (Family Court Act § 812; CPL § 530.11). To assure an intelligent choice of forum, the Legislature mandated that certain admonitions be given to every complaining spouse amounting at the time of this offense to at least (Family Court Act § 812; CPL 530.11):

"(a) That there is a concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;

(b) That a family court proceeding is a civil proceeding and is for the purpose of attempting to keep the family unit intact. Referrals for counselling or counselling services are available through probation for this purpose;

(c) That a proceeding in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender;

(d) That a proceeding or action subject to the provisions of this section is initiated at the time of the filing of an accusatory instrument or family court petition, not at the time of arrest, or request for arrest, if any;

(e) That subject to the provisions of § 813 of this article, the filing of such accusatory instrument or family court petition constitutes a final choice of forum after 72 hours have elapsed from such filing, and bars any subsequent proceeding in an alternative court based on the same offense....;

(f) That an arrest may precede the commencement of a family court or a criminal court proceeding, but an arrest is not a requirement for commencement of either proceeding."

A subsequent transfer from the family court to the criminal court can only be made with the injured spouse's consent (Family Court Act § 813), but there is no similar statutory provision for any subsequent transfer from the criminal court to the family court. The statute is silent on the effect of a failure to render the mandated admonitions to the complaining spouses, and there are few reported cases considering the effect of that failure.

In People v. Garcia, 98 Misc.2d 907, 415 N.Y.S.2d 175, relied upon by the defendant, the court held that the statutory admonitions were a condition precedent to a binding election of remedies by the complaining spouse. There, as here, the complaining spouse alleged that she had never been officially advised of her right of election and that had she been so advised, she would have selected the Family Court. In light of the noncompliance, the court dismissed the complaint and noted that it was dismissing, rather than transferring it to the Family Court, because there was no longer any statutory machinery in existence to effect a transfer to that court.

The Garcia rationale was followed in People ex rel Bartolomei on behalf of McIver v. Gray (N.Y.L.J., Supreme Court 2/9/82, page 16, column 2). In that case, a justices' court had initially directed a transfer of a family assault complaint to the Family Court after a hearing had determined that the complainant mother had not been advised of her right under the statute to choose that forum. When the Family Court refused to accept jurisdiction because more than 72 hours had elapsed from the filing of the felony complaint, the District Attorney obtained an indictment against the defendant. After the indictment he had the complainant mother execute a written form of election to proceed in the criminal court. On the writ, the Supreme Court ordered the matter transferred to the County Court to advise the complainant of her right of election and, further, if she then chose the Family Court, the County Court was instructed to dismiss the indictment. Here too, the Supreme Court did not direct a transfer of the matter to the Family Court although it, like the County Court and unlike the criminal court, has constitutional authority to transfer matters to a court having jurisdiction (New York Constitution Article 6 § 19).

However, in People v. Mack, 53 N.Y.2d 803, 439 N.Y.S.2d 912, 422 N.E.2d 572 the court held that the admonitions required by § 812 of the Family Court Act did not go to the jurisdiction of the courts, and that any defect in compliance was waived by a plea of guilty. The court also intimated that the statutory provisions in question were intended to alert complainants of their rights to choose the proper forum and that defendants have no right to command that decision.

This court concludes that the right to make the initial selection of the forum is personal to the complainant even though that choice may adversely affect the ultimate consequences to the offender. Thus, mere technical noncompliance with the statute may not be availed of by the defendant where the complaining spouse does not assert her rights to the contrary.

However, where the complainant was not advised of the statutory right of election and now expresses a desire to do so, then the only way to effectuate the purpose of the statute is to permit an exercise of that right. In a proper case this may be accomplished by a dismissal of the charge and either a transfer of the subject matter to the Family Court or the institution of an original proceeding in that court. This remedy is not available where, as here, the defendant has plead guilty to the charge (see People v. Mack, supra). Nevertheless since this procedural defect might yet be corrected at this stage by a proper motion to vacate the plea (CPL 220.60, subd. 3; see People v. Thomas, 78 A.D.2d 940, 433 N.Y.S.2d 264; cf. People v. Jones, 44 N.Y.2d 76, 404 N.Y.S.2d 85, 375 N.E.2d 41, cert. den. 439 U.S. 846, 99 S.Ct. 145, 58 L.Ed.2d 148), this court must consider the second issue dealing with the issue of whether the weapons charge falls within the meaning of the statute giving the complaining spouse the right to elect to proceed in either the criminal or family court.

The statute provides that the criminal and family court shall have concurrent jurisdiction over acts which constitute "disorderly conduct, harassment, menacing, reckless...