S, In re

• Decision Date: 30 January 1973
• Citation: 341 N.Y.S.2d 11,73 Misc.2d 187
• Parties: In the Matter of Anthony S, a person alleged to be a juvenile delinquent, Respondent.
• Court: New York Family Court

Page 11

341 N.Y.S.2d 11

73 Misc.2d 187

In the Matter of Anthony S, a person alleged to be a

juvenile delinquent, Respondent.

Family Court, City of New York, Richmond County.

Jan. 30, 1973.

Norman Redlich, Corp. Counsel, by Thomas J. Burns, Brooklyn, for petitioner.

Daniel D. Leddy, Jr., Staten Island, for respondent.

STANLEY GARTENSTEIN, Judge:

Two motions having constitutional implications are before the Court in this proceeding to adjudicate the respondent a juvenile delinquent.

The petition alleges that respondent, age 14, did attempt to stab one victim and did actually stab a second victim who received 12 sutures in his wrist and 10 in his lip.

The petition is verified upon information and belief by the arresting officer. The complaining witnesses with full knowledge of the incidents alleged have never executed either a petition on knowledge or supporting depositions to be filed with the Court. Nevertheless, paragraph '9' of the petition, the standard form in use promulgated by the Judicial Conference, reads as follows:

'As to the allegations herein made upon information and belief, the sources of petitioner's information and grounds of belief are the statements and admissions of respondent if any and the statements and depositions of witnesses if any now on file with this Court.'

Respondent now moves for disclosure in the form of an order directing that he be permitted to examine depositions of complaining witnesses on file; or, in the alternative, that this proceeding be dismissed because the petition, corresponding to the criminal information or indictment, has been verified on information and belief and there are no supporting depositions of complaining witnesses on file.

Respondent further moves for an order of dismissal based upon the undisputed contention that he was not represented by counsel in the informal pre-court Intake conference at which time he had the opportunity to have this matter adjusted before a petition was drawn. He argues that this deprived him of his constitutional right to counsel.

Respondent concedes that this Court's prior holding in Matter of H., 71 Misc.2d 1042, 337 N.Y.S.2d 118 was directly in point. (The opposing attorneys in that matter are the same attorneys now before the court.) He urges this Court not to follow the holding of my brother, the Honorable Ralph E. Cory, claiming that Judge Cory's decision was based on legislative intent not to allow statements made at Intake to be admitted on the trial, thus eliminating, by legislative intent, the right to counsel at Intake. It is argued that full reference to the constitutional trend was not made in that decision. The Court concurs with the closely reasoned decision of my brother in that matter but will honor respondent's application that consideration be given to the full constitutional trend which he urges mandates a different result herein.

RIGHT TO COUNSEL AT INTAKE CONFERENCE:

The informal conference prior to judicial proceedings is unique to the system of juvenile justice in the United States. It is a clearing house in which solutions are worked out under the protective eye of court sanctioned social workers which insures the fact that lessons will be learned and the prospective respondent put back into the community with all possible assurance that, having had his brush with the law, he will not return either to this or the Criminal Court. This 'preventive medicine' stage, unique to the juvenile courts, insures that no one will come to the 'fail safe' point in contact with the Court and not be able to turn back. Sometimes a simple apology will soothe ruffled feelings; often restitution can be worked out to everyone's satisfaction buttressed by voluntary probation and supervision. Even novel solutions such as cleaning subway graffiti are utilized. In point of fact, with everyone satisfied and the youthful perpetrator having permanently learned his lesson, in this county alone, for a period between January and November, 1972, statistics show that of 515 delinquency matters handled at Intake, 360 were adjusted while 155 were referred to Court, a ratio in excess of two-thirds disposed of informally.

Should an aggrieved party insist on his right to be heard in court after informal Intake has been exhausted, that party may not be prevented from filing a petition and bringing the matter on for adjudication (Family Court Rules, rule 7.3; 22 NYCRR 2502.4). Moreover, whether or not a case is adjusted at Intake, Section 735 of the Family Court Act provides:

'No statement made during a preliminary conference may be admitted into evidence at a fact-finding hearing. . . .'

Does the constitutional right to counsel attach to the Intake conference?

PRIOR HOLDINGS OF THE SUPREME COURT:

The convulsions now being felt throughout the juvenile justice system are the result of a chain of holdings by the United States Supreme Court and the problem of ascertaining what areas were or were not affected. Summarized, these are:

Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 which held inadmissible a tainted confession to murder by a 15-year-old boy;

Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, to the same effect where a 14-year-old boy was on trial;

Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, in which the Court mandated that a juvenile court's decision as to acceptance or waiver of jurisdiction must be made in accordance with basic due process and fairness;

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, which held the juvenile court procedures subject to the due process clause of the 14th Amendment and to embrace adequate written notice; advice as to right of counsel, retained or appointed; confrontation; cross-examination; and privilege against self-incrimination;

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 requiring a standard of proof beyond a reasonable doubt;

McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, rejecting the claim that juveniles are entitled to jury trials.

From these decisions, the Court in McKeiver stressed that although the Hearing (added emphasis) must measure up to essentials of due process, not all rights in connection therewith guaranteed to adults were guaranteed to juveniles, lest this destroy the very fabric of the unique nature of the juvenile court, and in the words of the Court, (p. 534, 91 S.Ct. p. 1981) 'deprive it of its 'informality, flexibility or speed."

It is significant that the McKeiver (supra,...