Opinion
D-XXXXX-XX
09-02-2020
In the Matter of Keyon C., A Person Alleged to be a Juvenile Delinquent, Respondent.
Assistant Corporation Counsel Joseph Pepe, Esq. and the Legal Aid Society Juvenile Rights Practice by Cynthia Rivera, Esq.
Assistant Corporation Counsel Joseph Pepe, Esq. and the Legal Aid Society Juvenile Rights Practice by Cynthia Rivera, Esq.
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILDREN UPON THE APPELLANT, WHICHEVER IS EARLIEST.
Respondent Keyon C. stands charged with conduct, which if engaged by an adult, would constitute the crimes of Attempted Sexual Act in the First Degree (Penal Law [PL] § 110/130.50 [1]), a Class C Violent Felony; Sexual Abuse in the First Degree (PL §130.65[1]), a Class D Violent Felony; Attempted Criminal Sexual Act in the Third Degree (PL §110/130.40[3]), a Class A Misdemeanor; Sexual Abuse in the Second Degree (PL § 130.60 [2]), a Class A Misdemeanor; and Sexual Abuse in the Third Degree (PL § 130.55), a Class B Misdemeanor, with respect to a sexual incident that occurred at his school's fifth floor bathroom on December 14, 2018. After fact-finding was begun on January 31, 2020, respondent, through his attorney, filed a motion on July 29, 2020, seeking dismissal of the petition in the interest of justice under Family Court Act (FCA) § 315.2 (1), or for the matter to be adjourned in contemplation of dismissal under FCA § 315.3.
Respondent's attorney contends that the petition was filed five months after the alleged sexual incident and Keyon has been paroled, on consent, without supervision or any conditions beyond complying with a full stay away temporary order of protection issued on behalf of the complainant against him. Additionally, respondent's attorney argues that Keyon is unable to accept any settlement offers as he maintains his innocence and is unable to admit to an act that he did not commit. The presentment agency opposes the motion, and maintains that there are no compelling circumstances supporting the extraordinary remedy of dismissal of the petition or an adjournment in contemplation of dismissal.
For the reasons set forth below, the defendant's motion is denied in part, and granted in part.
THE RELEVANT FACTS AND CIRCUMSTANCES
On or about December 14, 2018, New York City Police Officer Brendan Murphy (PO Murphy) was assigned to a case that involved allegations of sexual abuse by the respondent on the complainant, Ashley Perez (Ashley), who was 12 years old at the time. On or about December 19, 2018, a forensic interview of the complainant was conducted at the Bronx Child Advocacy Center (CAC). Ashley stated that she was sexually abused by the respondent inside the fifth floor girls' bathroom at their school. She specifically stated that respondent asked her to give him "head;" tried to force her to bend down; and ultimately forced her hand to "jerk him off" and touch his exposed penis. Ashley indicated she attempted to pull away from the respondent, but was unable to escape from him.
On or about January 4, 2019, while respondent's mother, Annette C. (Ms. C. or respondent's mother) was present, Detective Gabriel Baaith (Det. Baaith) read the juvenile his Miranda warnings and interviewed him. Respondent denied the allegations of sexual conduct, and his statement was reduced to writing. On that day, Det. Baaith arrested the respondent. On or about May 23, 2019, the presentment agency filed the present petition in Bronx Family Court. The Court issued a summons directing respondent to appear in court on May 31, 2019. The presentment agency was to personally serve the summons on respondent.
On May 31, 2019, respondent appeared in Bronx Family Court, a Legal Aid Society attorney was assigned to him, counsel entered a general denial, and issue was joined. The Risk Assessment Instrument (RAI) documented no history of arrests, warrants or prior court involvement. On this day, the Court issued a full stay away temporary order of protection on behalf of the complainant, and the matter was adjourned to July 12, 2019 for a conference. Based on the RAI, Keyon was paroled, on consent, without supervision. He has remained paroled at home with his family for the past 14 months.
On June 26, 2019, respondent's attorney filed her omnibus motion, seeking suppression of any statements made by the respondent to police. Alternatively, his attorney requested pre-trial hearings to determine the admissibility of respondent's statements. The presentment agency consented to a pre-trial Huntley suppression hearing. On July 24, 2019, the Court granted respondent's motion for a Huntley hearing, on consent, and September 25, 2019 was selected for the hearing. Subsequently, the previous attorney for respondent requested an adjournment, and the matter was adjourned to October 30, 2019. Because the matter was adjourned to October 1019, it was administratively transferred from Part 4 to Part 2. On or about October 28, 2019, the previous attorney for the respondent once again requested an adjournment since a new attorney from the Legal Aid Society was being assigned to Keyon as she was moving to another borough office.
The matter was adjourned to November 13, 2019 for the Huntley hearing. On that new date, the pre-trial suppression hearing was commenced. On December 3, 2019, the hearing ended, and the Court denied the suppression of respondent's statements. The fact-finding hearing was scheduled for January 24, 2020. However, on January 24, respondent arrived late for the hearing, and January 29, 2020 was selected as the next fact-finding hearing date. On January 29, respondent again failed to appear in court and a stayed warrant was issued until January 31, 2020. On January 31, 2020, fact-finding was commenced. No hearing took place in February as respondent's attorney requested an adjournment or early March 2020 as the presiding judge was sick for two days. On March 13, 2020, fact-finding was continued, and additional hearing dates were selected. Given the threat of infection from COVID -19, and subsequent lock down and closing of the New York City courts, the previously selected hearing dates of March 17, March 18, March 25, May 12, May 27, and June 8, 2020 were vacated. On May 12, 2020, the matter was administratively transferred to Judge Gayle Roberts (Judge Roberts) of Part 1. On July 14, 2020, a virtual attorneys-only conference with Judge Roberts was held. It was determined that the fact-finding hearing would have to be completed in this Court's part. On July 23, 2020, a virtual attorneys-only conference was held with this Court's court attorney. Completing the fact-finding through virtual means was the primary topic of the conference. The case was adjourned to August 6, 2020 for a virtual attorneys-only conference with the Court.
Throughout the pendency of this case, the presentment agency has extended settlement offers, including probation for a supervisory period of 12 months. However, respondent's attorney maintains that respondent is unable to accept any settlement offer as he maintains his innocence. His attorney notes that "Keyon is facing an impossible choice: consenting to a continued, indeterminate delay in the resolution of his case or consenting to a virtual hearing, thereby waiving his constitutional rights to due process and the Confrontation Clause." On or about July 29, 2020, off-calendar, respondent's attorney served the dismissal motion upon the presentment agency. On August 21, 2020, the presentment agency filed its response papers, opposing the relief sought.
DISCUSSION
A. Dismissal in the Furtherance of Justice (FCA § 315.2 [1])
Even where there is no legal basis for dismissal of a juvenile petition, the Court in its discretion may dismiss the action in the furtherance of justice and fairness (FCA § 315.2 [1]); see also Matter of Chris H., 197 AD2d 689, 689 [2d Dept 1993]). While the Court has the discretion to dismiss an accusatory instrument in the furtherance of justice, that discretion is controlled and limited (see People v Wingrad, 33 NY2d 192, 196 [1973]). "Dismissal of an [accusatory instrument] in the interest of justice must be exercised sparingly that is, only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution of the [accusatory instrument] would be an injustice" (People v Quadrozzi, 55 AD3d 93, 103 [2d Dept 2008], lv denied 12 NY3d 761[2009] [internal quotation marks omitted]; People v Howell, 139 AD3d 484, 484-485 [1st Dept 2016]; People v May, 100 AD3d 1411, 1413 [2d Dept 2012], lv denied 20 NY3d 1063 [2d Dept 2013]; Matter of Kwane M., 121 AD2d 635, 636 [2d Dept 1986]; see also People v Belge, 41 NY2d 60, 62-63 [1976]). Furthermore, the use of this extraordinary remedy depends solely upon the justice to be served by dismissal, rather than the confines of conventional considerations or the legal or factual merits of the case or even the guilt or innocence of the respondent (see People v Belge, 41 NY2d at 62-63; People v Stewart, 230 AD2d 116, 120-122 [1st Dept 1997]). The applicable statute seeks to strike a balance between the needs and interest of the respondent and the interests of the community (see Matter of P.C., 10 Misc 3d 1073 [A], 2005 NY Slip Op 52232 [U] [Family Ct, Nassau Cty 2005]). Where the respondent fails to meet this burden, the Court may summarily deny the motion (see People v Ambramo, 16 Misc 3d 306, 310 [District Ct, Nassau Cty 2007]).
Thus, the Court, to the extent appropriate, must examine and consider the merits of respondent's application in light of the factors enumerated in FCA § 315.2, and balance the interests of the respondent, the complainant and the community (People v Rickert, 58 NY2 122, 127 [1983]; People v Belkota, 50 AD2d 118, 120 [4th Dept 1975]). In support of his motion to dismiss, respondent's attorney discusses the factors set forth in FCA § 315.2 that justify the dismissal of the action in the furtherance of justice, and argues that the Court, in an exercise of its judicial discretion, only needs to find one of the enumerated factors to be readily identifiable and sufficiently compelling to support a dismissal of the petition (People v Rickert, 58 NY2d at 128; Matter of Chris H., 197 AD2d at 689-690).
The Court's application of the statutorily enumerated factors set forth in FCA § 315.2 is as follows: (a) Seriousness and Circumstances of the Crimes
While this is respondent's first arrest, it is obvious that the offenses charged are inherently serious, and disturbing. Respondent, who was 14 years old at the time of his arrest, is charged with a number of sexual offenses, including two violent felonies and three misdemeanors, against a then 12 year old girl, who was allegedly pulled into a bathroom stall where he forcefully attempted to have her perform oral sex on him. His attorney, however, argues that the seriousness and circumstances of the crimes charged do not warrant continued prosecution beyond the 19 months that have already lapsed since the incident date. She further argues that Keyon did not expose any part of the complainant's body or touch any sexual part of her body. Keyon also alleges that the complainant likes him, and so the circumstances of the alleged offenses, are unclear. (b) The Extent of Harm caused by the Crime Charged
The complainant was only 12 years when the alleged sexual contact occurred. At a minimum, the alleged conduct of the respondent left the complainant emotionally distressed and scared. The Court also agrees with the presentment agency's arguments that with any person subjected to unwanted sexual contact, the harm is likely to include both short term and lifelong emotional trauma (see Matter of Angel R., 21 Misc 3d 1135 [A], 2008 NY Slip Op 52393 [U] [Family Ct, NY County 2008]). However, the presentment agency's papers are silent as to any counseling or treatment the complainant may have sought as a result of the alleged incident. Nonetheless, the complainant may be emotionally impacted if she is called to testify or relive the events alleged. (c) Any Exceptionally Serious Misconduct of Law Enforcement Personnel
No misconduct is alleged in connection with the prosecution of the charged offenses, and none has been reflected in the court record. (d) The History, Character and Condition of the Respondent
Respondent's attorney reports that Keyon is now 16 years old, and has no prior juvenile delinquency findings. Keyon's mother reports no behavioral issues, and he has no PINS history. His attorney contends that he lives in a supportive, stable and loving family composed of his mother and grandmother. He has never run away from home, and there are no allegations of drug or alcohol misuse. His mother works, and his grandmother takes care of him until his mother returns from work, His mother reports that her son is respectful, and follows the rules. She has no concerns regarding her son's friends. He has been attending summer school, and is expected to be promoted to the 10th grade at the Eagle Academy for Young Men where he will receive an Individualized Education Plan (IEP). While he allegedly goes to school on a regular basis, Keyon struggles academically due to the disability that qualifies him for the IEP. His teachers describe him as a good advocate for his educational needs as he looks for help when he has difficulty learning a new concept. Keyon enjoys basketball and video games.
Although the various personal background factors enumerated by respondent's attorney may be considered in mitigation upon imposition of sentence, they do not rise to the level of requiring the Court to act favorably on the respondent's request to dismiss. Moreover, the fact that respondent does not have a prior criminal record, standing alone, does not warrant the relief sought (see People v Crespo, 244 AD2d 563, 564 [2d Dept 1997], lv denied 91 NY2d 925 [1998]). (e) The Needs and Best Interests of the Respondent
Among the purposes of imposing a sentence upon a respondent who is convicted of a sexual crime is successful rehabilitation. This goal is aimed at the respondent and at the public at large. Keyon's attorney argues that a juvenile delinquency disposition should provide an effective intervention to positively impact the lives of troubled young people (Matter of Narvanda S., 109 AD3d 710, 712 [1st Dept 2013]). Keyon's attorney further asserts that respondent has had no previous juvenile justice involvement or subsequent involvement after his arrest on these charges. His best interest and educational needs would be appropriately served by permitting Keyon to prioritize his schooling where he struggles with a disability, without ongoing court interference and the stress and stigma of a finding of juvenile delinquency. However, the presentment agency maintains that respondent should be provided with an opportunity to partake in rehabilitative and therapeutic services to avoid future criminal involvement.
(f) The Need for Protection of the Community
The attorney for Keyon argues that even if the charges were sustained, the alleged incident was an isolated occurrence that took place over 19 months ago. For the past 19 months, Keyon is not confined to detention, placed under any pre-trial alternative to detention supervision or undergone treatment to prevent repeat offenses. Additionally, he has fully complied with the full, stay away temporary order of protection issued 14 months ago, and has had no new police contacts during the past 19 months.
As to the effect on the public safety and welfare of the community as argued by the presentment agency, neither objective will be advanced by permitting the respondent to avoid responsibility for the charged offenses. Additionally, a dismissal of these charges would cause the public to lose confidence in the juvenile justice system. The public would view the system as unconcerned or cavalier about the alleged sexual abuse of children.
(g) Any other Relevant Fact which Demonstrates that a Finding would Serve no Useful Purpose
Respondent's attorney references the length of time that has passed since the commencement of the proceedings. However, the presentment agency maintains that the prolonged delay in this case are due to respondent's requests for adjournments, or respondent's lateness or non-appearance in court, or as a result of circumstances beyond the parties' control, including illness and a global pandemic. ***
Having considered the statutory and decisional criteria, as well as the circumstances of this case, the Court does not find any compelling factor, consideration or circumstance which demonstrates that prosecution of the respondent would result in an injustice. It would, therefore, be an inappropriate exercise of this Court's discretion to dismiss the petition in the furtherance of justice. Respondent's motion to dismiss the petition in the furtherance of justice is, therefore, denied.
B. Application for a Pre-Fact Finding Adjournment in Contemplation of Dismissal in the Interest of Justice
The presentment agency contends that respondent should not be granted an adjournment in contemplation of dismissal based upon the seriousness of the offense; the need to protect the community; and the extent of harm caused by the respondent. Finally, because respondent has failed to understand the consequences of his actions, the presentment agency is concerned that respondent may pose a danger to other children and therefore, requires supervision for a longer period of time than six months. It insists that the least restrictive alternative for respondent is 12 months of probation, with certain conditions, including that the Probation Department supervise him and monitor his school and home behavior, curfew and referral to a treatment program.
"The overriding intent of the juvenile delinquency article [in the Family Court Act] is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public" (Matter of Robert J., 2 NY3d 339, 346 [2004]; see also Matter of Jose R., 83 NY2d 388, 394-395 [1994]; Matter of Jermaine G., 38 AD3d 105, 111 [2d Dept 2007]). Consistent with the goal of providing delinquent children with supervision, treatment or confinement designed to achieve rehabilitation (see Green v Montgomery, 95 NY2d 693, 697-698 [2001]; Matter of Carmelo E., 57 NY2d 431, 435 [1982]; Matter of Quinton A., 49 NY2d 328, 334-335 [1980]), the statute contains no preference for any particular dispositional alternative and it directs that "[i]n determining an appropriate order the court shall consider the needs and best interests of the respondent as well as the need for protection of the community" (FCA § 352.2 [2] [a]). Moreover, the Court is required to "order the least restrictive available alternative . . . which is consistent with the needs and best interests of the respondent and the need for protection of the community" (FCA § 352.2 [2] [a]). Given that objective, "[t]he two interests at stake, the needs of the child and the needs of the community, are presumptively entitled to equal weight" (Matter of Todd B., 190 AD2d 1035, 1036 [4th Dept 1993]; see also Matter of Horan A., 74 AD3d 1192, 1194 [2d Dept 2010]; Matter of Aaron P., 72 AD3d 826, 827 [2d Dept 2010]; Matter of Pedro A., 34 AD3d 461, 461-462 [2d Dept 2006]; Matter of Timothy C., 31 AD3d 1222, 1223 [4th Dept 2006]).
If, upon the conclusion of a dispositional hearing, the Family Court determines that the respondent in a juvenile delinquency proceeding requires supervision, treatment, or confinement, "the court shall enter a finding that such respondent is a juvenile delinquent and order an appropriate disposition pursuant to [Family Court Act] section 352.2" (FCA § 352.1[1]). However, except in limited circumstances not applicable here, the Court may, at any time prior to the entering of a finding that the respondent is a juvenile delinquent, order that the proceeding be adjourned in contemplation of dismissal. The Family Court has the discretionary authority to grant an adjournment in contemplation of dismissal prior to holding a fact-finding hearing, without an admission, and over the objection of the presentment agency (FCA § 315.3 [1]; see also Matter of Nigel H., 136 AD3d 1033, 1034 [2d Dept 2016] ; Matter of Jonathan M., 107 AD3d 805, 806 [2d Dept 2013]).
An adjournment in contemplation of dismissal (ACD) is not to exceed six months and it is to be entered, with any terms and conditions the Court deems appropriate, with the goal of dismissing the case in furtherance of justice. An ACD is to be entered when the Court finds it is the least restrictive available alternative consistent with the needs and best interests of the respondent and the need for protection of the community (see FCA § 301.1; FCA § 352.2[2]). Moreover, the only offenses excluded from the entry of an ACD are designated felonies (see FCA § 315.3; Matter of Edwin L., 88 NY2d 593, 600 [1996]). Factors relevant to the Court's discretionary determination include the nature and seriousness of the underlying offenses, the respondent's acceptance of responsibility for his actions, criminal history and prior court involvement, history of alcohol and drug use, association with gang activity, any recommendations made in a probation or mental health report, the ability of the parent(s) to provide adequate supervision, home environment and compliance with prior court orders and proceedings (see Matter of Maximo M., 184AD3d 780, 2020 NY Slip Op 03428 [2d Dept 2020], citing to Matter of Nijuel J., 169 AD3d 681, 682-683 [2d Dept 2019]; Matter of Anthony M., 47AD3d 434, 435 [1st Dept 2008]).
Respondent's attorney points out that New York Family Courts have granted ACDs in other cases of sexual abuse (see e.g., Matter of Maximo M., 184AD3d 780, 2020 NY Slip Op 03428 [2d Dept 2020]; Matter of Juan P., 114 AD3d 460, 462 [1st Dept 2014]; Matter of Narvanda S., 109 AD3d 710, 711 [1st Dept 2013]). In the latter case of Matter of Narvanda S., the Appellate Division, First Department, directed that an ACD be granted retroactively where the complainant struggled and tried to get away from her teen attacker as he dragged her down a school hallway, touched both of her breasts, and attempted to kiss her. Because he had no prior or subsequent contact with the police or the juvenile court system, good school attendance, no demonstrated drug/alcohol use, and was described by mother as "respectful," the Court held that based upon the best interests of the child, the least restrictive alternative was an ACD. The Court finds that the facts of Matter of Narvanda S. are analogous to the facts of this case, the only difference is that this matter is pre-fact finding. Taking into consideration the seriousness of the acts committed by the respondent , and balancing that against the respondent's stable home life, family support, school attendance, lack of any prior or subsequent history with the police and juvenile justice system, along with his compliance with the order of protection now in place, his young age at the time of the alleged incident, no history of drug or alcohol use or gang affiliation and the fact that Keyon has stayed out of trouble for the past 19 months that the case has been pending, there is no reason to believe that Keyon needs any supervision beyond that which can be provided under an ACD (see Matter of Juan P., 114 AD3d at 462-463; Matter of Justin Charles H., 9 AD3d 316, 317 [1st Dept 2004]). This Court, as well, concludes that an ACD is the least restrictive alternative (see Matter of Jonnevin B., 93 AD3d 572, 572 [1st Dept 2012]) that serves to both protect the community and further the best interests of the child. Needless to say, consideration of the factors that support the granting of this portion of the motion does not compel the Court to overlook Keyon's shortcomings. This Court disapproves of the conduct in which the respondent allegedly engaged, which is completely unacceptable, his alleged failure to accept responsibility for his actions, and his failure to participate in any counseling program to address the underlying allegations of this case during the pendency of this proceeding. Under these circumstances, the Court finds that respondent is in need of some direction and supervision. Therefore, the application for a supervised ACD is granted.
The ACD is conditioned on respondent's compliance with Department of Probation (DOP) monitoring and supervision. DOP shall provide the same level of supervision over this pre-fact finding ACD as a post-dispositional probation order. It is directed to monitor Keyon's school attendance and compliance with his curfew, refer him for counseling and monitor his participation in the counseling program. Reports on his progress will be provided to the parties and Court after 45 days, 90 days and at the end of the six month supervisory period.
CONCLUSION
In all, the Court finds that there are no compelling circumstances supporting the drastic remedy of dismissal of the petition in the furtherance of justice. Therefore, that part of respondent's motion is denied.
However, respondent's application to adjourn the matter in contemplation of dismissal, under FCA § 315.3, is granted in the interests of justice, and in the best interests of respondent and the community. Having considered that this matter is respondent's first and only involvement in a juvenile delinquency proceeding and respondent has an otherwise unblemished record, comes from a stable home environment, attends school regularly, has complied with the temporary order of protection and there is no indication that he has a history of using drugs or alcohol or has a gang affiliation, and his post-incident behavior has been unproblematic, this Court finds that a supervised pre-fact finding ACD, with certain conditions, is appropriate. This Court strongly believes that an ACD, conditioned on respondent's regular school attendance, compliance with a permanent order of protection on behalf of the complainant, no further arrests and participation in an appropriate counseling or therapeutic program shall serve the needs of Keyon and the community (see Matter of Juan P., 114 AD3d at 462; Matter of Osriel L., 94 AD3d 523, 523 [1st Dept 2012]; Matter of Israel M., 57 AD3d 274, 275 [1st Dept 2008]). An ACD, as well, would avoid the stigma of a juvenile delinquent adjudication (see Matter of Letisha D., 14 AD3d 455, 456-457 [1st Dept 2005]). For these reasons, the Court denies respondent's motion to dismiss the petition in the furtherance of justice, but grants his application for an ACD.
Accordingly, it is hereby ORDERED that the motion to dismiss the juvenile delinquency petition in the interest of justice is denied; and it is further ORDERED that the motion for an order of an adjournment in contemplation of dismissal, pursuant to FCA § 315.3 (1), is granted. Dated: September 2, 2020 ENTER: Bronx, New York __________ HON. ALMA M. GÓMEZ, J.F.C.