Willie E., Matter of

Citation88 N.Y.2d 205,666 N.E.2d 1043,644 N.Y.S.2d 130
Parties, 666 N.E.2d 1043 In the Matter of WILLIE E., a Person Alleged to be a Juvenile Delinquent, Appellant. George Dentes, as Tompkins County District Attorney, Respondent.
Decision Date07 May 1996
CourtNew York Court of Appeals

Paul J. Connolly, Albany, for appellant.

George M. Dentes, District Attorney of Tompkins County, Ithaca (Stephen B. Flash, of counsel), for pro se.

OPINION OF THE COURT

SMITH, Judge.

The primary issues here are (1) whether the 60-day period for commencing a fact-finding hearing in the Family Court begins after the initial appearance on the first petition when the petition is refiled due to the dismissal of the first petition, and (2) whether the facts here constitute good cause for an adjournment despite the court's failure to so state on the record. We conclude that the initial appearance on the first petition commences the 60-day period and that good cause for the adjournment of the fact-finding hearing appears on the record.

The first petition, filed in this case on November 9, 1993, was an order of removal from the Tompkins County Court to the Family Court pursuant to CPL article 725. A Grand Jury hearing the case had made a request for removal pursuant to CPL 190.71. Pursuant to Family Court Act § 311.1(7), the order of removal was deemed to be a petition in the Family Court. The document charged that on or about September 23, 1993, appellant committed (1) sexual abuse in the first degree by subjecting a person to sexual contact by forcible compulsion (Penal Law § 130.65[1], and (2) sexual misconduct by engaging in sexual intercourse with a female without her consent (Penal Law § 130.20[1].

An initial appearance on the petition originally scheduled for November 22, 1993 was rescheduled for November 24, 1993. Appellant moved to dismiss the petition on the grounds that the initial appearance was not scheduled within 10 days after the filing of the petition as required (Family Ct. Act § 320.2[1]; § 340.1[3] ) and that the petition was jurisdictionally defective because the Grand Jury minutes had not been filed within 30 days after the order of removal was filed (Family Ct. Act § 311.1[7]. The motion was granted on January 10, 1994 on both grounds.

A new petition with the same charges was made on January 11, 1994. The initial appearance of appellant on the new petition occurred on January 12, 1994. The appellant did not respond affirmatively to the court's inquiry as to whether he intended to proceed with the fact-finding hearing scheduled, on the original petition, for January 14, 1994. The Law Guardian orally moved for a dismissal of the second petition on the grounds that the first petition had been dismissed for failure to grant a speedy trial in that the initial appearance had not occurred within 10 days of the filing of the petition, and the petition had, therefore, been dismissed with prejudice. The court denied the motion, stating that the dismissal was based on the sufficiency of the petition.

The Law Guardian then asked for the statutorily required 15 days for discovery (Family Ct. Act § 331.7[2] and 30 days to make motions (Family Ct. Act § 332.2[1]. The Assistant District Attorney commented that any adjournment would have to be based upon a finding of good cause stated on the record. The court adjourned the matter to February 10, 1994, without stating on the record that it was for good cause.

By order to show cause dated February 2, 1994, appellant moved to dismiss the second petition on the ground the court lacked jurisdiction to adjudicate a refiled petition previously dismissed on speedy trial grounds. The court denied the motion, stating that the circumstances of the adjournment on January 10, 1994, including appellant's request for time to make motions, "were deemed good cause" by the court even though not explicitly stated on the record. The court reiterated that the dismissal of the first petition was "upon the grounds of jurisdictional deficiency," that a delay in the initial appearance beyond 10 days was not intended to be a speedy trial ground for dismissal, and that a hearing within 60 days of the initial appearance on the petition was still possible at the time of the dismissal.

Appellant's first argument is that the 60-day time period in which the fact-finding hearing must commence when a juvenile is not detained (Family Ct. Act § 340.1[2] begins after the initial appearance on the first petition. Respondent contends that because a petition dismissed for a jurisdictional defect is a nullity, the 60-day period commences only upon the initial appearance on the second petition.

In Matter of Robert O., 87 N.Y.2d 9, 637 N.Y.S.2d 329, 660 N.E.2d 1108, this Court did not reach the issue of whether the 60-day period commences with the initial appearance on the first petition or with a subsequent petition. 1 We hold that under the facts here the 60-day period commences with the initial appearance on the first petition. This conclusion is consistent with the legislative mandate that there be a swift determination of the charges brought against juveniles. (See, Matter of Frank C., 70 N.Y.2d 408, 522 N.Y.S.2d 89, 516 N.E.2d 1203 [dismissal of petition upheld where adjournments beyond the 60-day period had not been based on good cause or special circumstances]; Matter of...

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