Robert O., Matter of

Decision Date05 December 1995
Citation637 N.Y.S.2d 329,660 N.E.2d 1108,87 N.Y.2d 9
Parties, 660 N.E.2d 1108 In the Matter of ROBERT O., a Person Alleged to be a Juvenile Delinquent, Appellant.
CourtNew York Court of Appeals Court of Appeals

TITONE, Judge.

In this juvenile delinquency proceeding we are called upon to determine the consequences of a failure to hold the "initial appearance" within 10 days of the filing of the delinquency petition as required by Family Court Act § 320.2. We conclude that this flaw is not alone a reason to foreclose a timely prosecution of the underlying charges.

On March 2, 1993, the presentment agency filed a petition alleging that respondent committed acts, which if committed by an adult, would constitute the crimes of burglary in the first degree, burglary in the second degree and petit larceny. The charges stem from respondent's alleged breaking and entering into a residence while armed and his theft of property therefrom. Respondent's initial appearance on the petition was not held until March 29, 1993.

Respondent then moved to dismiss the petition on the ground that the initial appearance was not held within 10 days of the date the petition was filed as required by Family Court Act § 320.2(1) and no good cause was shown for the delay. The presentment agency conceded that dismissal of that petition was proper since no good cause had been shown, but argued that dismissal should be without prejudice to refile the petition. Family Court granted the motion and dismissed the petition on April 26, 1993. 1 On May 3, 1993, the presentment agency filed an identical petition against respondent. Respondent's appearance on the second petition was held on May 11, 1993.

Respondent then moved to dismiss the second petition pursuant to Family Court Act §§ 310.2, 320.2 and 332.1(8) on the ground that his right to a speedy fact-finding hearing was violated. Family Court denied the motion, holding that the right to speedy fact finding guaranteed by the Family Court Act "is not compromised by allowing the refiling of a petition" where, as here, the fact-finding hearing commenced within 60 days of the initial appearance on the first petition. Respondent preserved his right to appeal after admitting that he committed acts constituting unlawful possession of a weapon by a person under 16 in satisfaction of all charges in the petition. 2 Respondent was adjudicated a juvenile delinquent and placed on probation for a term of 12 months.

The Appellate Division affirmed, with one Justice dissenting. The majority concluded that the presentment agency was not precluded from refiling a delinquency petition after the first was dismissed for failure to hold the initial appearance within 10 days of such filing where the juvenile's separate right to a "speedy hearing" was observed. The dissent opined that the presentment agency's failure to show "good cause" for the belated initial appearance required dismissal of the petition with prejudice in order to give effect to the statutory "good cause" language. We granted respondent permission to take this appeal, and now affirm.

The Family Court Act prescribes the procedures and time frames for conducting the juvenile's "initial appearance," which is "the proceeding on the date the respondent first appears before the court after a [delinquency] petition has been filed and any adjournments thereof" (Family Ct. Act § 320.1). 3 At the initial appearance, the juvenile is appointed a Law Guardian if independent counsel has not been retained, informed of the charges contained in the petition, and furnished with a copy of the petition (Family Ct. Act § 320.2[2]; § 320.4[1]. At that time, the court must determine whether detention of the juvenile is warranted, whether the case should be referred to the probation service for adjustment services, the date of the probable-cause hearing for a detained child, the date of the fact-finding hearing, and other issues properly before it (id., § 320.4[2][a]-[e]. Family Court Act § 320.2(1) provides that "[i]f the respondent is not detained, the initial appearance shall be held as soon as practicable and, absent good cause shown, within ten days after a petition is filed."

Where the juvenile is not detained, an adjudication on the merits of the petition's charges, known as the "fact-finding" phase of the process, "shall commence not more than sixty days after the conclusion of the initial appearance" (Family Ct. Act § 340.1[2], subject to adjournments for good cause and special circumstances (see, id., § 340.1[3]-[5] ). The Legislature has given the time frame for commencing the fact-finding phase special status by providing that "[a]fter a petition has been filed * * * the respondent is entitled to a speedy fact-finding hearing" (id., § 310.2). No counterpart to this section exists for the initial appearance. To protect a juvenile's right to a "swift and certain adjudication" within the designated 60-day time period (see, Matter of Frank C., 70 N.Y.2d 408, 413, 522 N.Y.S.2d 89, 516 N.E.2d 1203), Family Court Act § 332.1(8) expressly authorizes the filing of a pretrial motion to "dismiss[ ] a petition, or any count thereof, on the ground that the respondent has been denied a speedy fact-finding hearing contrary to section 310.2" (id., § 332.1[8] ). Thus, under the legislative scheme, so long as the adjudication is completed within 60 days, unless good-cause or special-circumstances adjournments are in order, a respondent's right to a speedy fact finding has been preserved.

We reject respondent's contention that a violation of the 10-day period for holding the initial appearance alone warrants dismissal of the petition with prejudice, regardless of the date fact finding has commenced. While the Legislature has seen fit to give protected status to the 60-day limit for commencing the fact-finding phase by enacting the speedy fact-finding right and by providing an express ground for dismissal for its violation, the time period for holding the initial appearance has not been granted similar protected status (cf., Matter of Jose R., 83 N.Y.2d 388, 610 N.Y.S.2d 937, 632 N.E.2d 1260 [dismissal of petition for failing to timely complete dispositional phase not warranted where Family Court Act lacks provisions establishing right to a speedy disposition and authorizing dismissal of petition for such violation].

The Family Court does not have inherent power to dismiss a juvenile delinquency petition. Rather, that authority is governed by statute, and is available only in carefully delineated circumstances (see, Family Ct. Act §§ 315.1, 332.1). Specifically, in addition to a dismissal for a denial of the right to a speedy fact finding, the grounds for dismissal are expressly limited to the existence of factual, legal or jurisdictional defects in a petition (see, id., § 315.1), a violation of the Statute of Limitations of Family Court Act § 302.2 (id., § 332.1[9] ) and a violation of the prohibition against double jeopardy as provided by Family Court Act § 303.2 (id., § 332.1[10] ). Where a petition is dismissed as jurisdictionally defective, dismissal is generally without prejudice, and the presentment agency's proper recourse is to refile the petition (see, Matter of Detrece H., 78 N.Y.2d 107, 111, 571 N.Y.S.2d 899, 575 N.E.2d 385). While the parties here agree that dismissal of the first petition was in order, they dispute whether that dismissal was with prejudice. Nowhere in the Family Court Act is a dismissal for a violation of the 10-day limit for holding the...

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