People v. Kenyon

• Decision Date: 09 January 1975
• Citation: 46 A.D.2d 409,362 N.Y.S.2d 644
• Parties: PEOPLE of the State of New York, Respondent, v. Donald KENYON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 644

362 N.Y.S.2d 644

46 A.D.2d 409

PEOPLE of the State of New York, Respondent, v. Donald KENYON, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Jan. 9, 1975.

Peter L. Yellin, Rochester (Leslie A. Bradshaw, Rochester, of counsel), for appellant

Jack B. Lazarus, Dist. Atty., Rochester (Melvin Bressler, Rochester, of counsel), for respondent.

Before MARSH, P.J., and WITMER, SIMONS, MAHONEY and GOLDMAN, JJ.

OPINION

GOLDMAN, Justice:

This appeal presents an unusual situation dealing with the respective jurisdictions of family court and county court in a case involving an assault on a child by his stepfather. The facts clearly establish a controversy 'between members of the same family or household' within the meaning of section 812 of the Family Court Act.

This litigation began with a proceeding under Article 10 of the Family Court Act (Child Protective Proceedings). It was initiated by a complaint of the Department of Social Services alleging that defendant and his wife were responsible for the abuse and neglect of the three children of the wife by a prior marriage. All of the children were under five years of age. Charles Christopher, three years old, had suffered a serious cut on his left arm which the evidence disclosed had been inflicted by defendant who 'had Christopher on the kitchen floor, had a saw in his hand and cut Christopher's arm severely'. The injury was so great that the child was rushed to the hospital where he arrived in an unconscious condition and with no discernible pulse. The family court decision recites that the assault left the child with an impairment of functioning of the arm and possible impairment of emotional health. The record further indicates that the mother was present at the time of the incident and did nothing to prevent it.

All of the parties were represented by counsel at the adjudicatory hearing. The children were represented by a law guardian, the mother by the Legal Aid Society and the defendant by the Public Defender. An assistant district attorney was present throughout the proceedings, as required by Family Court Act, § 254(b). After hearing the proofs and the testimony offered, the court found that the allegations of the petition were proved and determined that the 'child, Charles Christopher Osborn is an abused and neglected child and Randy Lee Sawdy and David Osborn are neglected children within the meaning of Article 10 * * *'. The court placed the three children in the custody of the Department of Social Services for 18 months, placed defendant on probation for one year and made a protective order directing the defendant to stay away from the children.

About one month after the family court order of disposition the district attorney presented the matter to a grand jury which indicted defendant for assault in the first degree (Penal Law, § 120.10(1)(3)). Defendant then moved in the county court to dismiss the indictment on the ground 'that there exists some other jurisdictional or legal impediment to conviction'. The specific ground for the motion was that the acts which constituted the alleged assault were between parent and child or between members of the same family or household and, therefore, should be referred to family court, pursuant to section 812. Defendant contended that People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180 was controlling and required the referal. County court denied the motion on the ground that the matter had originally been initiated in family court, that it was fully explored and heard, that the proceedings had been completed and that it would be useless to return it to family court. Defendant then pleaded guilty to assault in the second degree and was sentenced to probation for five years.

The New York State Constitution (Article VI, §§ 13(b); 19(b) provides that family court has jurisdiction over crimes and offenses between parent and child and section 812 of the Family Court Act implements this by giving family court 'exclusive original jurisdiction'. That such jurisdiction is not to be retained in every family controversy is clearly recognized in People v. Johnson, 20 N.Y.2d 220, 223, 282 N.Y.S.2d 481, 484, 229 N.E.2d 180, 182, Supra, wherein the court said, 'There is little danger that truly criminal conduct will be treated as a 'family offense' rather than a crime and go unpunished'. This is accomplished in proper cases by a referral of the matter to a court having criminal jurisdiction.

Defendant relies on the language of Article 8, § 813, of the Family Court Act which requires a transfer to family court of any criminal complaint charging disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household. The language of this section is mandatory (People v. Bronson, 39 A.D.2d 464, 337 N.Y.S.2d 215; People v. Battaglia, 39 A.D.2d 833, 333 N.Y.S.2d 47; People v. Berger, 40 A.D.2d 192, 338 N.Y.S.2d 762). The purpose of this section, which provides that a criminal complaint charging a family offense must be transferred to family court not more than three days from the time that the complaint has been made, is to avoid delay in the handling of such cases (People v. Gemmill, 34 A.D.2d 177, 310 N.Y.S.2d 244; People v. Davis, 27 A.D.2d 299, 278 N.Y.S.2d 750). The Family Court Act provides in effect, 'that a 'family offense' was not to be prosecuted as a 'crime' until the Family Court judge so determined * * *' (People v. Johnson, Supra, 20 N.Y.2d at p. 225, 282 N.Y.S.2d at p. 485, 229 N.E.2d at p. 183; see, also, People v. DeJesus, 21 A.D.2d 236, 241, 250 N.Y.S.2d 317). The language of section 813 is not permissive. On the other hand, the language of Article 10, § 1014, involving a transfer to or from family court in an Article 10 proceeding is permissive and provides for concurrent proceedings in the family court and the criminal court.

The primary purpose of Article 10 is to protect children from abuse and that protection was properly and promptly provided in the instant case. The family court has jurisdiction under Article 10 even though a criminal court 'has or may be exercising jurisdiction' over the same facts which are alleged in the petition under Article 10. The district attorney participated in the family court proceeding, as is his statutory responsibility. He could not have taken the...