S v. S

• Decision Date: 21 May 1970
• Citation: 63 Misc.2d 1,311 N.Y.S.2d 169
• Parties: In the Matter of Ruth S, * Petitioner, v. George S, * Respondent.
• Court: New York City Court

Page 169

311 N.Y.S.2d 169

63 Misc.2d 1

In the Matter of Ruth S, ^* Petitioner, v. George S, * Respondent.

Family Court, City of New York, New York County, Family

Offenses Term.

May 21, 1970.

[63 Misc.2d 2] Ruth S, pro se.

Morris H. Halpern, New York City, for respondent.

OPINION

MILLARD L. MIDONICK, Judge.

Has the Family Court initial jurisdiction over incestuous conduct between brother, 16 to 17 years of age, and sister, 12 to 13 years of age? If so, shall such jurisdiction be retained in the Family Court, or in the exercise of discretion, transferred for criminal procedures under section 816 of the Family Court Act because the processes of the Family Court are inappropriate to the circumstances of this particular cause?

If the Family Court has initial jurisdiction over this type of unlawful conduct, criminal courts and grand juries are required to avoid action on the merits of the problem unless and until the Family Court shall have transferred the cause for criminal procedures after a hearing in which Family Court determines that its procedures are inappropriate. People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180; People v. Fowlkes, 24 N.Y.2d 274, 287, 300 N.Y.S.2d 89, 98, 248 N.E.2d 8, 15; Family Court Act, section 816.

This is not a case of conduct by the male when under the age of 16 years, which would of course be cognizable as juvenile delinquency. Family Court Act, section 731. The respondent here is the son of the petitioning mother who complains on behalf of her infant daughter. The respondent was born on November 16, 1952. His sister was born on December 31, 1956. This brother and sister produced a baby born on February 8, 1970. The baby was conceived approximately in May, 1969, at which time the respondent was several months over the age of 16 years, and his sister 12.

The complaining mother filed an information in the Criminal Court of the City of New York, County of New York, on April 10, 1970, two months after the birth of the baby, alleging in effect both a delinquency and an adult crime, in that the incestuous conduct was indulged in by the respondent with his sister in violation of Penal Law, section 255.25, during the period from the summer of 1968 to the fall of 1969, respondent having attained 16 on November 16, 1968. Incest is classified as a Class 'E' felony. Penal Law, section 255.25.

The facts as to the three birth dates above were stipulated, as was the relationship of respondent and his sister as siblings of the whole blood. It was further stipulated by counsel for respondent and by the complaining mother of the respondent, that findings and hearing for the purpose of fact finding were waived. (Family Court Act, section 835(a)), and that Family Court may proceed to a consent decree, i.e., a consent order of protection, as though the allegations of the petition were proved.

This respondent is merely accused, not of juvenile delinquency, ¹ but of 'assault' and private 'disorderly conduct' directed against a member of his family, wherefore the petitioner prays, not for a delinquency adjudication, but for an order of protection specifying conditions of behavior to be observed by respondent in accordance with sections 815 and 842 of the Family Court Act, and that the procedures of this court be utilized in an effort to adjust the family difficulties. The Legislature expressly gave as its purpose to create a 'civil proceeding' to give 'practical help' in the Family Court which 'is better equipped to render such help' and to avoid a 'criminal conviction'. Family Court Act, section 811. Such a respondent is conditionally protected against criminal proceedings, not only by 'exclusive original jurisdiction' under Family Court Act, section 812, but also by the hitherto uncommented upon section 845, Family Court Act, which provides:

'When the terms of an order of disposition made under this article are satisfied, no criminal proceeding may be commenced with respect to the acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment, assault or attempt (sic) assault on which the adjudication giving rise to the order of disposition was based.'

While a guilty respondent, if the Family Court retains jurisdiction, may be subject to a suspended judgment, probation, or an order of protection (sections 841, 842) he may not be incarcerated for the original misbehavior, in this case, incest. Only upon his wilful failure to obey any such order of the court, may the court, after another hearing and a finding by competent proof of the wilful violation of the order, commit the respondent to jail for a term not to exceed six months (section 846) and/or transfer him to criminal procedures (section 845).

Did the Legislature intend to confer exclusive initial jurisdiction upon the Family Court and, in its sound discretion, to retain, or to transfer for criminal procedures, the unlawful conduct known as incest? The Supreme Court, in the Appellate Division for the Second Department, and at Special Term have ruled in the negative in cases involving sodomy between members of the same household. People ex rel. Doty v. Krueger, 32 A.D.2d 845, 302 N.Y.S.2d 605, affirming by memorandum 58 Misc.2d 428, 295 N.Y.S.2d 581 (cousins); People v. Fuentes, 51 Misc.2d 354, 273 N.Y.S.2d 321 (father and daughter). While the lower court in Krueger attempts to weigh the seriousness of the felonious sexual misconduct as not within the ambit of assault and disorderly conduct, quoting the Court of Appeals in People v. Johnson, 20 N.Y.2d 220 at 225, 282 N.Y.S.2d 481 at 485, 229 N.E.2d 180 at 183, for the proposition that only mere 'domestic quarrels' are removed 'from the ambit of the criminal law' (58 Misc.2d at 429--430, 295 N.Y.S.2d at 582--583), that Special Term opinion fails to give controlling weight to the felonious assault despite which the indictment was invalidated in People v. Johnson, Supra 20 N.Y.2d at 222, 282 N.Y.S.2d at 482, 229 N.E.2d at 181 (assault with a knife). Under the former Penal Law, defendant Johnson was indicted for assault in the second degree, a felony, in that he assaulted his wife with a knife. The judgment of conviction was unanimously reversed by the Court of Appeals, the indictment dismissed and the matter transferred to the Family Court, Id. at 226, 282 N.Y.S.2d at 486, 229 N.E.2d at 183. The Court of Appeals further stated:

'There is little danger that truly criminal conduct will be treated as a 'family offense' rather than a crime and go unpunished. An order of the Family Court which denies transfer of the family offense proceeding to a criminal court is subject to review (Family Court Act, § 1012; see People v. Davis, 27 A.D.2d 299, 305, 278 N.Y.S.2d 750, 755) and will undoubtedly be reversed if the retention of the case constitutes an abuse of discretion.' People v. Johnson, Supra at 223--224, 282 N.Y.S.2d at 484, 229 N.E.2d at 182.

The Appellate Division affirmed in Krueger, supra, 'on the opinion of the learned Justice at Special Term. We agree that proceedings concerning sodomy and sexual abuse, each in the first degree, committed between members (cousins) of the same household, are not transferable to the Family Court pursuant to section 812 of the Family Court Act.' ² The Appellate Division seems in Krueger to emphasize beyond the seriousness of the criminal conduct, the difference in quality between a felonious assault, and sodomy by a man upon his nine year old cousin. Perhaps such direct jurisdictional attention by the Supreme Court, by-passing Family Court, is justifiable, and if so, on another theory only, under section 19, subd. a of Article VI of the Constitution of the State of New York:

'As may be provided by law, ³ the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice.'

But if the Supreme Court (not a grand jury) were to exercise its power to adjudicate a Family Court issue, the defendant must be afforded his right to a hearing on that issue: whether he is entitled to civil rather than criminal procedures (Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84); and any indictment would be vacated and void until after transfer to criminal procedures. People v. Johnson, 20 N.Y.2d 220, 222, 282 N.Y.S.2d 481, 482, 229 N.E.2d 180, 181.

Subsequent to the Krueger decision by the Appellate Division of the Second Department, the Court of Appeals, as recently as April 9, 1969 has further illuminated the scope of 'assault' when 'inextricably related by a common element' of other unlawful conduct. In People v. Fowlkes, 24 N.Y.2d 274 at 285, 287, 300 N.Y.S.2d 89 at 97, 98, 248 N.E.2d 8 at 14, 15, as in the case before us originating in the First Department, a judgment of conviction by the Supreme Court, on a plea of guilty to attempted assault in the second degree, a felony, and a sentence of 2 to 3 1/2 years in State prison, was unanimously reversed and the proceeding transferred to the Family Court. 'The defendant was accused of having broken into the apartment of a woman, now conceded to be his wife, and of stabbing her. was indicted on two counts of assault, and counts of burglary and possession of a dangerous weapon'. Id. at 285, 300 N.Y.S.2d at 97, 248 N.E.2d at 14. Were the woman never his wife, Family Court would have no jurisdiction over the conduct known as 'burglary' nor 'possession of a dangerous weapon' with intent to use same unlawfully, since defendant was not a juvenile, being over the age of 16. The unanimous Court of Appeals reasoned that both burglary (i.e. breaking and entering) and felonious possession of a dangerous weapon, rely on the assault, or the intent to commit it, as the only criminal element of mental culpability charged in the entire indictment. Id. at 286, 300 N.Y.S.2d at 98, 248 N.E.2d at...