Opinion
2011KN092555
12-16-2011
The People of the State of New York, v. Samatha R., Defendant.
For Defendant: Legal Aid Society For the People: Hon. Charles J. Hynes District Attorney, Kings County
For Defendant: Legal Aid Society
For the People: Hon. Charles J. Hynes District Attorney, Kings County
John T. Hecht, J.
The defendant is a 16-year old with no criminal history who is charged with the offense of loitering for the purpose of prostitution. The charge is a non-criminal violation punishable by no more than fifteen days jail. When she appeared before me in the arraignment part she was also the subject of a warrant that had issued out of Family Court.
The accusatory instrument pertinently alleges that Police Officer Albert Q. Dodson:
observed the defendant remain in or wander about a public place for twenty minutes, during which defendant repeatedly beckoned to passers-by and stopped two passers-by, engaging in conversation with said passers-by; stop only male passers-by and defendant did not beckon to or converse with female passers-by who passed by during the same period ...; standing in the middle of the road while beckoning to motorists....[D]efendant stated, in substance, "I was coming from a party with my cousin."
At defendant's arraignment, I addressed sua sponte whether I should dismiss this prosecution both as an exercise of my interests-of-justice power and in light of the recently enacted Safe Harbour for Exploited Children Act (the "Safe Harbour Act") (as added by L 2008, ch 569 [eff Apr. 1, 2010]), which I read to express the intent of the Legislature that 16- and 17-year-olds who are charged with prostitution offenses should be referred to Family Court rather than prosecuted criminally. The People requested an opportunity to address my proposed dismissal in writing, even though I noted that the legislative sponsors of the Safe Harbour Act believed that the mere pendency of criminal charges against these children was itself harmful:
[A]rresting, prosecuting and incarcerating victimized youth serves to re-traumatize them and to increase their feelings of low self-esteem. This only makes the process of recovery more(Sponsor's Mem, Bill Jacket, Safe Harbour Act, L 2008, ch 569 [emphasis supplied]).
difficult. Appropriate services for sexually exploited youth do not exist in the juvenile justice system and both federal and international law recognize that sexually exploited youth are the victims of crime and should be treated as such. Therefore, sexually exploited youth should not be prosecuted under the Penal Law for acts of prostitution. Instead services should be created to meet the needs of these youth outside of the justice system. Sexually exploited youth deserve the protection and services of the family court through processes in place for persons in need of supervision, including diversion, crisis intervention, counseling, and emergency and long term housing services.
Ultimately, I afforded the People and the defense an opportunity to respond to the proposed dismissal, not only in fairness to the People (see People v Clayton, 41 AD2d 204, 208 [2nd Dep't 1973]), but also to assure that any decision I made would be based on a consideration of all appropriate arguments.
Now, on a record that includes a submission by the People, I conclude that this prosecution should be dismissed in the interests of justice.
A court may dismiss a prosecution on its own motion (see CPL 170.40 [2]; People v. Wingard, 33 NY2d 192 [1973]). My review of the factors relevant to such a dismissal is informed by recent legislative enactments that reveal an understanding that the victim of a prostitution offense may be the prostitute herself. In fact, if the prostitute or, as here, alleged would-be prostitute, is 16- or 17-years-old, the Legislature defines her as a "sexually exploited child" who may obtain child welfare services for sexually exploited children (see Social Services Law 447-a [1] [b]; [d]; 447-b).
The Legislature passed the Safe Harbour Act, among other things, to make the Family Court's services available to sexually exploited children up to the age of 18. It amended the definition of a "person in need of supervision" ("PINS"), with regard to whom a Family Court proceeding may be originated, to include a child under 18 charged with prostitution (see Family Ct Act 712 [a]) or loitering for the purpose of prostitution (see Family Ct Act 712 [a]; Social Services Law 447-a [1] [d]). As a Family Court judge has observed, the Safe Harbour Act "expresses a preference that children who have been sexually exploited be spared criminal prosecution ... in favor of receiving rehabilitative services." (Matter of Bobby P., 28 Misc 3d 959, 969 [Fam Ct Queens County 2010]; see also Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act 732 ["The intent is to immunize most children who have committed sexual offenses from criminal prosecution ..., substituting PINS adjudication and services."]).
Although sections 712 [a] and 732 [b] of the Family Court Act appear to require the consent of the 16- or 17-year-old in order for a loitering allegation to form the basis of a PINS petition, section 732 [a] [i] of the Act does not and it applies to loitering by referencing Social Services Law 447-a [1] [d]. (See Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Family Ct Act 732 [Section 732 [a] "paints with a far broader brush than" Section 712 [a]].)
The Safe Harbour Act came into effect against the backdrop of the federal Victims of Trafficking and Violence Protection Act of 2000 (22 U.S.C. § 7101 et seq., as added by Pub L 106-386, 114 US Stat 1464), which defined the crimes of forced labor and sex trafficking, provided support for trafficking victims, and established a system for monitoring worldwide anti-trafficking efforts (see Hon. Betty Weinberg Ellerin, Introduction, Lawyers Manual on Human Trafficking ("Lawyers Manual"), Supreme Court of the State of New York, Appellate Division, First Department and the New York State Judicial Committee on Women in the Courts, xx [2011]). Under federal law, if a 16- or 17-year-old has been induced to be a prostitute, she is considered to be a victim of a "severe form[] of trafficking in persons" (see Victims of Trafficking and Violence Protection Act of 2000, § 103 [8] [22 USC 7102 [8] [a]]). In 2000, Congress also provided avenues of immigration relief for children under 18 who are victims of a severe form of trafficking, i.e., prostitution, through "T" and "U" visas (see Slocum, Immigration Remedies for Victims of Human Trafficking, Lawyers Manual, at 209, 215).
The Safe Harbour Act added to the protections put in place by New York's Anti-Human Trafficking Act of 2006 (as added by L 2007, ch 74, sec 2 [eff Nov. 1, 2007]), which created the new offense of sex trafficking (see Penal Law 230.34). In passing this act, New York joined 29 states and the federal government in an effort not only "to prosecute the traffickers" but also to "provide[] these unique victims with the social services they need to break the ties with their traffickers and the opportunity to live healthy and productive lives" (see Letter from Mayor Michael R. Bloomberg, June 4, 2007, at 22, Bill Jacket, L 2007, ch 74; see also Letter from Michael E. Bongiorno, President, District Attorneys Association of the State of New York, May 31, 2007, at 24, Bill Jacket, L 2007, ch 74 [Act "addresses the abhorrent act of human trafficking by going after the traffickers and aiding their victims"]).
More recently, the Criminal Procedure Law was amended to provide that a victim of sex trafficking may seek vacatur of judgments of conviction for loitering (the charge here) and prostitution (see CPL 440.10 [i] [eff Aug.13, 2010]). As a result, courts have vacated convictions of individuals who had engaged in prostitution as a result of their having been trafficking victims (see People v Gonzalez, 32 Misc 3d 831 [Crim Ct, NY County 2011]; People v. G.M., 32 Misc 3d 274 [Crim Ct, Queens County 2011]), including at least one who was first convicted of prostitution when she was 17, and who had been prostituted from as young as 13 (see People v. Jane Doe, __ Misc 3d __, 2011 NY Slip op 21411, 2011 WL 5865295 [Sup Ct, Bronx County 2011]).
In connection with the passage of the Safe Harbour Act, many graphic details of the situation of, and consequences to, the children involved in child prostitution came into public focus. For example, a report prepared for the New York State Office of Children and Family Services determined that, in this state, the overwhelming majority of children who were identified as having been subjected to commercial sexual exploitation, including prostitution, had prior child-welfare involvement through child abuse and neglect investigations and/or foster care placement. In New York City, almost half had been adjudicated PINS, and over half had a prior juvenile justice placement. Demographically, they were identified predominantly as female (85 %), black (67 %), and 16- or 17-years-old (59 %) (see Gragg, Petta, Bernstein, Eisen and Quinn, New York Prevalence Study of Commercially Sexually Exploited Children, Final Report, at 42, 86 [NYS Office of Children and Family Services, Apr. 18, 2007 ("OCFS Report")].
The OCFS Report estimated that the commercial sexual exploitation of children affects 2,500 children in New York State each year, although it suggested that many more such children are "hidden" because they are runaways or homeless or, out of shame or embarrassment, do not disclose their sexual exploitation. Many of these children have been the victims of sexual and other physical abuse; many suffer from learning disabilities and limitations; many engage in what has been called "survival sex." They are at risk for HIV infection, post-traumatic stress disorder and other forms of mental illness and violence (id. at 3-5, 8, 25).
The Safe Harbour Act did not amend the Penal Law and provide a defense of infancy to a 16- or 17-year-old charged with a prostitution offense. Yet a Penal Law prosecution of such an individual, whom the Legislature elsewhere defines as a "sexually exploited child," whom the legislative materials reviewed above depict as vulnerable and likely already known to Family Court, and who may qualify as a "victim" under both federal and state anti-trafficking laws and therefore for vacatur of any conviction here, is inconsistent with the ameliorative intent of the Safe Harbour Act and other statutes cited.
I note that Social Services Law 447-b [2] provides that "[a]ll of the services created under this title may, to the extent possible provided by law, be available to all sexually exploited children whether they are accessed voluntarily, [or] as a condition of an adjournment in contemplation of dismissal issued in criminal court...." Although this reference to criminal court might be read as contemplating that sexually exploited children will continue to be prosecuted for prostitution offenses, I read this language otherwise. It emphasizes that the intent of the Safe Harbour Act is to make social services available to all sexually exploited children, including those who may have matters, of whatever nature, pending in criminal court. In other words, this section of the Social Services Law, which pertains to the availability of social services to exploited children, says nothing about jurisdiction. To the extent that the Safe Harbour Act does address jurisdiction, as discussed above, it expands Family Court's PINS jurisdiction in preference to that of criminal court for sexually exploited children charged with prostitution offenses.
Another inconsistency that arises from prosecuting a 16-year-old child, such as defendant here, lies within the Penal Law itself, which provides that a 16-year-old cannot legally consent to engage in sexual intercourse (see Penal Law 130.05 [3]), and is a rape victim if she engages in intercourse with someone who is 21 or older (see Penal Law 130.25 [2]; 130.40 [2]); yet at the same time she is a criminal if she consents to have intercourse for money. The Penal Law's provisions in this regard can more easily be reconciled if a 16-year-old were considered to be incapable of consenting to intercourse, whether or not money is involved, for if she is incapable of consenting to intercourse, that incapacity does not change because she also agrees to accept money. While I do not need to resolve this inconsistency, I note that it demonstrates another legislative indication that, for certain purposes at least, the Penal Law does not treat 16-year-olds as adults.
Further, as the Chief Judge of this State has recently pointed out, New York is out of step with virtually every other jurisdiction in this country (48 states and the District of Columbia) with regard to the age of criminal responsibility (see Chief Judge Jonathan Lippman, Remarks to Citizens Crime Commission of New York City
[Sept. 1, 2011], available at http://www.nycourts.gov/ip/sentencing/CJLippmansRemarksCitizensCrimeCommissionSeptember21201.pdf). He has queried whether 16- and 17-year-olds charged with non-violent offenses should continue to be prosecuted in criminal court rather than have their alleged offenses adjudicated in Family Court: Do we really want these teenagers to be processed in an adult criminal justice system focused on punishment and incarceration? ... where rehabilitative options are limited ... where they may be jailed .. . where they may be victimized ... and where they may be burdened with a criminal record that bars them from future employment and educational opportunities?
Or do we as a state want these young people to go through a family court system that is equipped to intervene meaningfully in their lives, before their troubles escalate into more serious criminality, and without exposing them to a criminal record? ... a system that is focused on rehabilitation and getting children back on the right track, that offers supervision, mental health treatment, remedial education and other services and programs ... a system where judges are obligated by law to act in the "best interests" of the children who come before them - a mandate that does not exist in criminal court.
Id.
The Chief Judge's questions are particularly relevant in the context of this case. The Safe Harbour Act specifically addresses the conduct charged here and provides for its non-punitive, non-criminal adjudication in Family Court. The other recently enacted state and federal laws previously mentioned would strongly suggest that criminal prosecution of a 16- or 17-year-old for a prostitution offense is inappropriate, and that the right response of law enforcement would be to bring the child before Family Court.
But I do not need to rule that this prosecution is barred under the Safe Harbour Act, because my interests-of-justice authority allows and, I believe, encourages me to achieve the same result - dismissal - on the narrower grounds present in this case.
The factors set forth in CPL 170.40 clearly demonstrate to me that the prosecution of this defendant would constitute injustice.
Before enumerating these factors, I wish to observe that the District Attorney offered the defendant the Saving Teens at Risk ("STAR") program, which is part of his office's own initiative to address prostitution by offenders under the age of 22 with counseling rather than incarceration. The program is free. If a defendant completes it, she will receive an Adjournment in Contemplation of Dismissal. No plea is required in order for her to participate in this program. Clearly the District Attorney, by offering the defendant the STAR program, is not seeking to punish but to help her. Nonetheless, no matter how truly laudable are the District Attorney's efforts to provide a treatment option to defendant and others like her, I cannot ignore the fact that the court retains the power to sentence the defendant to up to fifteen days in jail if she should ultimately fail to finish the STAR program and is then convicted of the charged offense, and that as a consequence of any such conviction she would have a potentially life-long criminal record, albeit for a violation. Nor can I ignore that her continued prosecution in criminal court may traumatize her to a greater extent than the prosecution of an adult defendant would affect an adult. These concerns counsel against continuing a prosecution, no matter how sensitively handled by the District Attorney, of an individual whom the law alternately regards as a child and an adult or quasi-adult (see n.3 supra), and whom the law also calls an "exploited child" and possibly a "victim," particularly where another appropriate forum may address the circumstances of her alleged offense.
To the extent that the Family Court Act may require the consent of the child to commence a PINS proceeding based on an allegation (as here) that a 16-year-old has engaged in loitering (see n.1 supra), it is possible that the Family Court might not ultimately adjudicate the offense set forth in this complaint. Nonetheless, I do not believe that that possibility outweighs all the other reasons that favor dismissal. In particular, this defendant is already involved in Family Court proceedings; accordingly, all appropriate Family Court services will presumably be made available to her there. I note as well that a court order is not necessary for a sexually exploited child, such as defendant, to access child welfare services, because the Safe Harbour Act also makes them available on a voluntary basis (see Social Services Law 447-b [2]).
I turn now to the statutory factors set forth in CPL 170.40.
First, the seriousness and circumstances of the offense alleged here are as minimally serious as can be. The charged offense, Penal Law 240.37, is a violation, which is not even a "crime" under the Penal Law's classification scheme (see Penal Law 10.00 [3]; [4]). The circumstances of the offense are likewise minimally serious: the defendant is alleged to have engaged in the proscribed conduct - loitering in the middle of the street - for a total of twenty minutes and to have stopped two passers-by to engage them in "conversation."
Second, the extent of harm caused by the offense is likewise minimal. Although I recognize, as Judge Richard Weinberg of Midtown Community Court reasoned when he denied a motion similar to the present (see People v. Lewis, 2010NY03560, NYLJ, decided July 12, 2011, at *1 [Crim Ct, NY County, Weinberg, J.]), that prostitution may negatively impact all participants as well as the neighborhoods where it occurs, the harm of the violation charged here is minimal. More importantly, I am persuaded that the harm to defendant's own physical and mental welfare from the alleged conduct is greater than any other societal harm that I can see in this particular case.
Third, I will assume that evidence of guilt is strong. Further, I am aware of no misconduct in the investigation, arrest and prosecution of defendant. To the contrary, the District Attorney is prosecuting this case with a focus on rehabilitative, rather than punitive, concerns. But even so, the absence of these factors does not dissuade me from my conclusion that dismissal is appropriate.
Fourth, the history, character and condition of defendant as revealed in this record are a 16-year-old who has no prior involvement with the criminal justice system, who has lived her entire life with her grandmother in New York City, who has completed the 11th grade, and who attends school.
Fifth, I find that there would be little purpose in imposing a sentence on defendant and that the effect of any sentence would do more harm than good.
The sentencing options in Criminal Court are limited. The likely sentence in a case such as this would not involve jail. Even if the sentence were a conditional discharge with required attendance at a counseling program, I see no purpose in imposing such a sentence when the options available in Family Court, as suggested by the Chief Judge, are likely superior because of the statutory mandate of considering the child's "best interests."
On the other hand, the effect of a conviction in this case would be seriously and inappropriately detrimental to the defendant. If convicted and sentenced, she would have a record, albeit for a non-criminal offense. Such a record - unlike that for a conviction of virtually any other violation - would not be subject to sealing pursuant to the general sealing statute (see CPL 160.55 [1]). And, as a result of another legal anomaly that arises from the definition of "youth" in the Criminal Procedure Law (see CPL 720.10 [1] [a "youth" is a person 16- to 18-years-old charged with a "crime"]), a conviction of this offense would not be subject to replacement by a youthful offender adjudication and sealing under the youthful offender law (see People v Caruso, 92 Misc 2d 559 [Onandaga County Ct 1977]). By contrast, any other adolescent with no prior record would be entitled to have her first misdemeanor conviction replaced by a youthful offender finding (see CPL 720.20 [1] [b] [court must find eligible youth to be a youthful offender upon her first conviction in criminal court]) - even though a misdemeanor is a more serious offense than the one charged here. Indeed, an adolescent convicted of a felony may be eligible to have her first felony conviction replaced by a youthful offender adjudication (see CPL 720.20 [1] [a]), leaving that adolescent with no public record of conviction. In sum, defendant here may have a life-long record of conviction of a stigmatizing offense (unless it were subsequently vacated pursuant to CPL 440.10 [i] or some other provision of law), when other adolescents whose cases were resolved in more unfavorable circumstances (i.e., conviction of a misdemeanor or felony) or adults similarly situated (i.e., convicted of a violation other than Penal Law 240.37) would not suffer that same detriment.
See Letter from Danielle Grant, Girls Educational and Mentoring Services, July 3, 2008, at 82, Bill Jacket, Safe Harbour Act, L 2008, ch 569 [their "records have been tarnished, so that now as adults they can't do the basic things, like getting a real job and anything else that requires background checks"].
Sixth, I do not believe that dismissal will impact the safety or welfare of the community. Although prostitution may have negative collateral effects on the community, attributing such effects to the alleged conduct of this particular defendant would surely be an exaggeration.
I further surmise that the District Attorney may find that maintaining a prosecution against an alleged teen prostitute might give law enforcement a tool with which to fight trafficking. Yet I doubt whether any public interest in this regard cannot equally be achieved if this case were handled in Family rather than Criminal Court. That is, the venue of the adjudication should not preclude a District Attorney from investigating the allegation that a teenager has been prostituted. More importantly, I would find it hard to justify refusing to dismiss the case against a teenager only so that prosecutors might prove that she is the victim of the crime with which she is charged (cf. Penal Law 230.36 ["In a prosecution for sex trafficking, a person from whose prostitution activity another person is alleged to have advanced or ... profited ... shall not be deemed to be an accomplice"]).
Seventh, I believe that the public's confidence in the criminal justice system will be enhanced by a dismissal here. The criminal justice system is not always the best venue for addressing societal problems. Here, the alleged offense - which is not a crime - involves someone who, according to the Penal Law, is barely an adult, if even that (see n.3 supra), and who, according to the Social Services Law, is a "sexually exploited child." In these circumstances, the purposes of the Penal Law, which include providing "an appropriate public response to particular offenses" (see Penal Law 1.05 [5]), favor an exercise of the criminal justice system's mercy-dispensing power to dismiss this prosecution. I believe that as a result of a dismissal here, the public will be confident that our laws are not inflexible or unduly harsh and that they do not operate in isolation of a growing awareness that, in the appropriate case, the lessened culpability of a 16-year-old vis-á-vis an adult, as well as the recognition that she is exploited if not also victimized, may require that the allegations against her be addressed outside criminal court.
For these reasons, this matter is dismissed. Sealing is stayed 30 days to allow the People an opportunity to seek Family Court adjudication of this matter and to seek leave to appeal.
The foregoing constitutes the decision and order of the court.
Dated: December 16, 2011
Brooklyn, New York
_________________
John T. Hecht
J.C.C.