Richard C., Matter of
| Decision Date | 04 August 1982 |
| Citation | 453 N.Y.S.2d 366,115 Misc.2d 314 |
| Parties | In the Matter of RICHARD C. * , A Person Alleged to be a Juvenile Delinquent, Respondent. Family Court, City of New York, Queens County |
| Court | New York Family Court |
Jean Marie Costello, Asst. Corp. Counsel, Riverhead, for petitioner.
Joseph Shuter, Legal Aid Society, Jamaica, for respondent.
DECISION and ORDER.
We hold herein that there exists no statutory or constitutional right to a hearing in favor of the recipient of an adjournment in contemplation of dismissal (ACD) prior to vacatur thereof and restoration of the underlying cause for trial or disposition.
The Facts :
After the respondent herein was found to have committed an act which if committed by an adult would constitute a crime under Penal Law § 165.25 (jostling) the matter was adjourned in contemplation of dismissal on consent for a six month period to expire on July 7, 1982. During the statutory six month interval between disposition and formal dismissal, respondent was again arrested and charged with attempted burglary, criminal mischief and other charges. Those charges are as yet unadjudicated. On the basis of this new arrest, the Department of Probation which monitors the interim six month statutory period prior to formal dismissal (Family Court Rule 2507.9(b)) filed a petition praying for vacatur of the ACD and restoration to the calendar for dispositional hearing. Respondent, demanding a hearing on the issue of vacatur, claims that prior to an adjudication of guilt on the new charge, the conditions of the prior ACD cannot be deemed violated. Hence, he claims, restoration would be improper. We disagree. The application to restore this cause is disposed of on an ex parte basis without hearing, and is granted.
Adjournment in Contemplation of Dismissal :
The procedural device now referred to as an adjournment in contemplation of dismissal (ACD) is historically rooted in adult criminal justice and existed in that system long before its current incarnation. Its recent transplant into the juvenile courts dates back less than a decade (Ch. 806 Laws of 1973). In order to comprehend the juvenile court version, it is necessary to understand the history and surrounding procedure of the original application. The fundamental insight too often obscured by the minutiae of a daily grind in processing of 650 arrests within the City of New York alone (Special Committee on Criminal Justice--Association of the Bar of City of New York, Discussion Paper # 4, Dec., 1978) is that the criminal justice system itself represents an ad hoc compromise between prerogatives of the prosecutor and those of the court itself. As a public officer charged with his own constitutional and statutory responsibilities, the prosecutor is possessed of certain prerogatives which might, under other circumstances, ordinarily belong to the court. Among these are the right to make the non-reviewable determination concerning whether or not any act alleged to be a crime will be prosecuted (People v. Elfe, 34 Misc.2d 206, 228 N.Y.S.2d 220; People v. Jones, 32 Misc.2d 821, 224 N.Y.S.2d 457; Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238) and the unique power to decide when a cause will be moved for trial (Silver v. Gassman, 12 Misc.2d 58, 171 N.Y.S.2d 314 aff'd. 6 A.D.2d 694, 174 N.Y.S.2d 277; McDonald v. Goldstein, 191 Misc. 863, 83 N.Y.S.2d 620, aff'd. 273 A.D. 649, 79 N.Y.S.2d 690). As may be readily perceived in the context of the everyday give and take of the courtroom, these powers encroach on that which would ordinarily be the exclusive province of a court to determine on the one hand, the life of a cause pending before it; and, on the other, the right to manage its own calendar. Because of this interaction, the People's prerogatives have uniformly been defined by appellate courts within the parameters of confrontation between two systemic powers each seeking their definition in terms of its own self-image. (cf. Silver v. Gassman, supra; McDonald v. Goldstein, supra.) Even the names of the litigants in the classic cases reflect this fact. 1 Inevitably, a defendant looks on as an interested bystander; he has the least to say as a matter of law.
The People's prerogative of making the determination as to which cause will be prosecuted was articulated in the Common Law as the doctrine of nolle prosequi. This inherent power which always belonged to the prosecutor was somewhat diluted in 1849 when a statutory revision was recommended and enacted into law (cf. People v. Quill, 11 Misc.2d 512, 177 N.Y.S.2d 380) giving the court the right to exercise it via the procedural device known as a dismissal in the interests of justice (People v. Quill, supra ; C.P.L. § 170.40 and § 210.40). The power of nolle prosequi whereby the District Attorney declares "I do not choose to prosecute" is mainly exercised in modern usage through an adjournment in contemplation of dismissal. In the adult criminal justice system, the right to consent thereto or to withhold same belongs exclusively to the District Attorney (C.P.L. § 170.55). While it is ostensibly true that the People's discretion not to "ACD" a case is non-reviewable, (People v. Cunningham, 106 Misc.2d 326, 431 N.Y.S.2d 785), the court may nevertheless exercise its version of the prerogative of nolle prosequi by dismissing in the interest of justice, thereby achieving the same result (People v. Quill, supra; People v. Dibono, 82 Misc.2d 177, 368 N.Y.S.2d 429). 2 In this manner, collision between a prosecutor's prerogatives and the court's must inevitably be resolved in the court's favor. Nevertheless, delineation between prosecutor's and court's authority being the bottom line, a defendant simply looks on. His rights take root when he is called upon to defend against the underlying charge. In the Family Court, an application for an ACD differs slightly in that it may be on the complainant's motion (or with his consent), or, if not forthcoming on the part of complainant, by the court on its own motion (FCA § 749). 3
The second of these prosecutor's prerogatives, the right to move a cause for trial (McDonald v. Goldstein, 191 Misc. 863, 83 N.Y.S.2d 620, aff'd. 273 A.D. 649, 79 N.Y.S.2d 690) is expressed, subsequent to adjournment in contemplation of dismissal, by a simple vacatur of the "ACD", and is counterbalanced by the plenary power of a court over its own calendars and procedures. (People v. Wingard, 33 N.Y.2d 192, 351 N.Y.S.2d 385, 306 N.E.2d 402; People v. Douglass and 4 other cases, App.Term 1st Dept. N.Y.L.J. July 20, 1982). The bottom line is the same: two institutional powers each trying to occupy the same space at the same time, with a defendant again looking on with no status. The issue between these institutions is calendar control. A defendant's rights attach only when he is called upon to defend on the merits after court and prosecutor have resolved "territorial" issues between them. Neither the decision to offer an ACD in the first instance (People v. Cunningham, supra ) nor to restore same (Singleton v. City of New York, 632 F.2d 185, Circuit Court of Appeals, 2nd Circuit, 1980) is reviewable. When the People restore a case which had previously been "ACD" 'd, they simply exercise their traditional prerogative of moving a cause for trial (Silver v. Gassman, supra ). No right to a hearing accrues to a defendant, nor does he possess standing to contest this action (People v. Hurt, 78 Misc.2d 43, 355 N.Y.S.2d 728; People v. Goldstein, 79 Misc.2d 996, 361 N.Y.S.2d 994).
In People v. Hurt, supra, the Criminal Court refused to grant a hearing to a defendant faced with restoration of an "ACD" for trial. The court reasoned first, that C.P.L. § 170.55 made restoration mandatory (referring to the word "must" in the statute): second, that a defendant in whose favor a prosecutor's determination had been made was the recipient of a privilege revocable at will. Commenting on defendant's asserted claim to a generally mandated constitutional right to hearing, the court stated (78 Misc.2d pp. 47-48, 355 N.Y.S.2d 728):
"In determining whether a violation of defendant's constitutional rights exists, the question is not merely the weight of the individual's interest, but whether the nature of the interest is one within the contemplation of the liberty or property language of the Fourteenth Amendment. (Fuentes v. Shevin, 407 U.S. 67 Whether any procedural safeguards are due depends on the extent to which an individual would be condemned to suffer grievous loss. (Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 It does not appear that by vacating the ACD and restoring the case to the calendar, any substantial interest of the defendant is affected. Nor does it appear such action would bring about any grievous loss in violation of defendant's Fourteenth Amendment rights."
People v. Hurt was held to be controlling by our learned colleague, the Hon. Benjamin E. Lander in People v. Goldstein, 79 Misc.2d 996, 361 N.Y.S.2d 994. In that case, Judge Lander pointed out that the ruling in People v. Hurt as to the non-availability of a hearing prior to vacatur of an ACD was based not only upon the Legislature's use of the word "must" in C.P.L. § 170.55 but also on defendant's failure to establish any constitutional right thereto. In commenting on this so-called "constitutional" right, Judge Lander wrote (pg. 998, 361 N.Y.S.2d 994):
"Further * * * the defendant...
To continue reading
Request your trial