Opinion
D-21217/10
03-01-2012
In the Matter of Andrew L., A Person Alleged to be a Juvenile Delinquent, Respondent.
Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of counsel), New York City, for Presentment Agency. Peter E. Tommaso, Kew Gardens, attorney for respondent.
Counsel: Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of counsel), New York City, for Presentment Agency. Peter E. Tommaso, Kew Gardens, attorney for respondent.
, J.
Respondent, Andrew L., who was adjudicated to be a juvenile delinquent by order dated March 11, 2011, has moved for an order pursuant to Family Court Act §355.1 vacating the adjudication of juvenile delinquency and the order of disposition entered on November 30, 2010, and for the entry of an order adjourning this proceeding in contemplation of dismissal pursuant to Family Court Act §315.3. Alternatively, respondent has moved for an order to seal the record of the juvenile delinquency proceeding pursuant to Family Court Act §372.2 . By petition filed pursuant to Family Court Act §310.1 (1) on October 6, 2010, Andrew L. was alleged to have committed acts which, were he an adult, would have constituted the crime of Criminal Sexual Act in the Third Degree (Penal Law §130.40 [3]). On November 30, 2010 the petition was amended upon consent of the parties to add a second count, charging respondent with committing an act which would constitute the crime of Sexual Misconduct (Penal Law §130.20 [2]). The factual portion of the juvenile delinquency alleged that on Sunday, October 3, 2010 at 12:15 A.M. inside of the residence of respondent's family in Bellerose, New York, the then 15-year-old respondent forced the victim, his then 14-year-old neighbor, to perform oral sex upon him.
Prior to November 1, 2003 the crime codified in Penal Law §130.40 was known as Sodomy in the Third Degree (see, Laws of 2003, ch 264).
Following preliminary proceedings upon the petition, on November 30, 2010 respondent entered an admission to having committed an act which would have constituted the crime of Sexual Misconduct in full satisfaction of the petition (Fam. Ct. Act §321.2 [3]). Following a dispositional hearing, respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act §352.1 [1]), and he was granted a Conditional Discharge for a period of twelve months, conditioned upon his participation in a counseling program to which he would be referred by the Department of Probation, his regular attendance at school, the commission of no further criminal or delinquent acts, and his compliance with the lawful commands of his parents (Fam. Ct. Act §§352.2 [1] [a]; 353.1).
Family Court Act §352.1 (1) provides that the respondent shall be adjudicated to be a juvenile delinquent if, at the conclusion of the dispositional hearing, "the court determines that the respondent requires supervision, treatment or confinement."
A
In support of the motion, the attorney for the respondent states that respondent "has successfully completed his junior year of school and is now a senior (report card attached hereto). He has obeyed all the requests of probation, and he has been examined by a counselor (report attached hereto). Andrew is working as a lifeguard this summer, [he] obeys his curfew, and his parents have informed me that they have had no problems with Andrew." Respondent's report card from his high school for the 4th quarter of the 2010-2011 academic year indicates that he passed all of his courses for the year, and that he was late only two times and absent a total of 5 days for the entire school year.
Appended to the motion is an affidavit from respondent's father attesting to Andrew's continued good behavior at home and at school, and the Court has also been provided with a letter from Andrew's high school Guidance Counselor indicating that he has been respondent's counselor for the past four years, and that he "has worked hard to become a positive member of the [school] community." The Guidance Counselor further writes that respondent has progressed academically, that his teachers indicate that his behavior and participation in his classes is "positive", and that respondent has been selected to be a Peer Counselor which will require him to act as an informal mentor for freshman entering the school.
Respondent has also submitted two reports from the therapist who counseled him. The therapist, a Licensed Clinical Social Worker (LCSW) and Certified Alcohol and Substance Abuse Counselor (CASAC), reports that "[i]t is my opinion that Andrew is not in need of psychotherapy. He freely spoke of the incident which led to his arrest and sentencing. He reports no symptoms of anxiety or depression. The consequences of his actions in with the 14 year old girl have caused him to see the seriousness of acting out in a sexual manner." In a second and more formal report the social worker indicates that he had a follow-up counseling session with respondent on September 29, 2011 and that he had a telephone conversation with the Dean at respondent's high school. According to the report, when the social worker met with the respondent on September 29, 2011, respondent "stated some of the girl's allegations were false" and that "[w]hen questioned about his responsibility he acknowledged he was trying to persuade the girl to perform oral sex, although he states he did not force her to perform oral sex." However, Andrew acknowledged that "it was wrong"to "influence a girl to perform a sexual act which she showed reluctance to engage in", and he understood that persons less than 17 years old were incapable of consenting to engage in sexual activity.
In addition, the social worker observed that the respondent "does not show the defensiveness of an adolescent who denies the seriousness of their actions. In discussing his behavior with past encounters with girls he does not show symptoms of sexual compulsivity or anti-social behavior associated with sex offenders." The report states that the respondent is "goal oriented" and was applying to colleges, and that he has a girlfriend, that they have had "a few break-ups" but that he "is happy with the relationship." The Dean at respondent's high school indicated that Andrew was performing well at school and that he presented no behavioral problems. Andrew reported continued good relations with his parents and brothers, and he stated that the incident had become "a public matter" in the community. In closing, the social worker stated that Andrew's "behavior and attitude have changed for the better" and that Andrew "is not in need of psychotherapy at this time."
Two affirmations were submitted by the Presentment Agency in opposition to the motion. In the first, the Assistant Corporation Counsel indicates that she spoke with the mother of the victim who had discussed respondent's application with both the victim and her father. According to the Assistant Corporation Counsel, "[t]he complainant's mother indicated to the Presentment Agency that her family opposes the respondent's application to grant the respondent an ACD. At the initial disposition, the family did not believe that a CD was appropriate, and therefore, does not believe that the least restrictive dispositional alternative is appropriate either."
While an adjournment in contemplation of dismissal does not constitute a dispositional order in a juvenile delinquency proceeding (Matter of Edwin L., 88 NY2d 593, 600; see, Matter of Robert J., 2 NY3d 339, 343), this statement apparently relates to respondent's application that the Court grant an adjournment in contemplation of dismissal in place of the adjudication of juvenile delinquency and the previously granted conditional discharge.
In the second affirmation, the Presentment Agency refers the Court to a letter written by the victim on September 5, 2011. The letter reads, in pertinent part, that she is opposed to sealing of the court record because "it would be like me having the courage to come forward would be for nothing. If he does something horrible like this again to some other innocent girl it would be like he never was arrested before." The victim further states that she suffered psychological trauma as a result of the incident, and in her opinion the respondent, more or less, "got off easy" in this case. The victim notes that she continues to suffer because she and the respondent reside in the same neighborhood and she sees him on an irregular basis. The Court has also reviewed once again the victim impact statement which was obtained by Safe Horizon and submitted at the dispositional hearing (see, Fam. Ct. Act §351.1 [4]).
B
Related to a court's inherent power over its own orders and judgments (Matter of Delfin A., 123 AD2d 318, 320; Bellevue-Santiago v. City Ready Mix, Inc., 270 AD2d 441; Quinn v. Guerra, 26 AD3d 872, 873, app dismissed 7 NY3d 741; Matter of Aaron H., 72 AD3d 1602, 1603, lv denied 15 NY3d 704), Family Court Act §355.1 specifically authorizes the Court, upon a showing of "a substantial change of circumstances", to grant a new fact-finding or dispositional hearing, or to "stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article" (Fam. Ct. Act §355.1 [1] [a], [b]). While the establishment of a substantial change of circumstances is an indispensable prerequisite to obtaining relief pursuant to Family Court Act §355.1 (Matter of Eugene S., 200 AD2d 574, 575; Matter of Chaz H., 298 AD2d 983, 984; Matter of Barry H., 309 AD2d 1147,lv denied 1 NY3d 503; Matter of Zachary T.D., 26 AD3d 801, 802; Matter of Eric S.D., 37 AD3d 1045, 1046; Matter of Jonathan C., 51 AD3d 559, 560), the statute does not define that term. Thus, in each case the court must conduct an individualized analysis in order to determine whether there has been a substantial change of circumstances.
In determining whether the Court should grant relief pursuant to Family Court Act §355.1, the Court observes that the criminal act to which respondent admitted, Sexual
Misconduct, is a class B misdemeanor, which as relevant to this case, is committed when a person "engages in oral sexual conduct or anal sexual conduct with another person without such erson's consent" (Penal Law §130.20 [2]). Here respondent and the Presentment Agency stipulated that the lack of consent was based solely upon the victim's lack of capacity to consent due to her age (Penal Law §130.05 [3] [a]), and not based upon any other factor specified by Penal Law §130.05 (3) (b-g), nor forcible compulsion (Penal Law §130.00 [8]). The onlydeterminations made by this Court were that respondent engaged in oral sexual conduct with the victim, and that the victim was unable to consent to such conduct by reason of her being less than 17 years of age.
In addition to lack of capacity to consent due to age, the statute provides that a person who is mentally disabled, mentally incapacitated, physically helpless, committed to a state prison or local jail, or placed with the Office of Children and Family Services is "deemed incapable of consenting" to sexual conduct (Penal Law §130.05 [3]). Forcible compulsion is defined as the use of physical force, or a threat which places a person in fear of immediate death or physical injury (Penal Law §130.00 [8]).
Indeed, as both the respondent and the victim were under the age of 17 on the date of the incident, both lacked the capacity to consent to engage in sexual conduct.(Penal Law §130.00 [10]). While courts have dismissed juvenile delinquency petitions charging Sexual Misconduct where the participants were both less than 17 years of age, in those cases the alleged victim was a willing participant in the sexual conduct (Matter of Cerino P., 296 AD2d 868; Matter of Jessie C., 164 AD2d 731, 736, app dismissed 78 NY2d 907).
While the Court acknowledges the victim's belief that the respondent received a lenient disposition, this was not a criminal action in which the court considers the need for deterrence, rehabilitation, retribution, and isolation in imposing a sentence (see, People v. Notey, 72 AD3d 279, 282; People v. Suitte, 90 AD2d 80, 83; People v. Schonfeld, 68 AD3d 449, 457). Rather, in this juvenile delinquency proceeding the Court was required to utilize the least restrictive dispositional alternative, consistent with the needs and best interests of the respondent and the need for protection of the community (Fam. Ct. Act §352.2 [2] [a]; Matter of Katherine W., 62 NY2d 947, 948; Matter of Devon N., 68 AD3d 523; Matter of Yonathan A., 70 AD3d 602;Matter of Olivia B., 72 AD3d 589).
Accordingly, the Court adjudicated respondent to be a juvenile delinquent and based upon the evidence adduced at the dispositional hearing, the Court determined that "neither the public interest nor the ends of justice would be served by a placement and that probation supervision is not appropriate" (Fam. Ct. Act §353.1 [1]). Respondent was therefore granted a conditional discharge for a period of twelve months (Fam. Ct. Act §353.1), during which period he was directed to comply with specific conditions which were found to be necessary and appropriate to ameliorate the conduct which gave rise to the filing of the petition (Fam. Ct. Act §§353.1 [2]; 353.2 [2] [h]). Additionally, respondent was directed to comply with an order of protection issued on behalf of the victim (Fam. Ct. Act §352.3 [1]).
"The overriding intent of the juvenile delinquency [statute] 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; see also, Matter of Jose R., 83 NY2d 388, 394-395;Matter of Benjamin L., 92 NY2d 660, 670). In assessing whether respondent has demonstrated a substantial change of circumstances since the entry of the order of disposition, the Court must bear in mind that the ultimate goal of the juvenile justice system is to provide rehabilitation and treatment to young people who have committed delinquent acts so that they may lead productive and law-abiding adult lives (see, Matter of Quinton A., 49 NY2d 328, 334-335; Matter of Carmelo E., 57 NY2d 431, 435; Green v. Montgomery, 95 NY2d 693, 697-698; Sebastian v. State of New York, 250 AD2d 260, 262, aff'd 93 NY2d 790).
In this case, the respondent has complied with all of the conditions which were imposed by the Court at the time of the conditional discharge, and he has conducted himself in a law-abiding manner for nearly a full year since that order was issued. Respondent continues to be a productive member of his community and school, and there is no indication that he requires further supervision beyond that which he normally receives from his parents. The documents submitted to this Court indicate that respondent does not suffer from any psychological conditions which require treatment or monitoring, and the social worker who provided him with counseling indicates that respondent has insight and understanding of the illegality and inappropriateness of the behavior which brought him before the Family Court. Critically, respondent has complied with the order of protection issued on behalf of the victim and there is no indication that he has attempted to contact her in any fashion. The only contact which respondent has with the victim has been inadvertent and resulting from the fact that both of their families reside in the same neighborhood.
Finally, while respondent expressed some disagreement with the victim's version of the underlying incident to the social worker who provided counseling, respondent has acknowledged his culpability in his admission before this Court, as well as his own responsibility for his actions which led to this case. Respondent has expressed his understanding that it is improper for him to persuade a person who is legally incapable of consenting to engage in sexual activity.
As respondent has complied with all of the conditions of the conditional discharge and the order of protection issued by the Court on March 8, 2011, and the documents submitted by respondent indicate that the intervention by this Court has succeeded in providing him with appropriate treatment and rehabilitation, the primary goal of this proceeding has been achieved.
This constitutes a substantial change of circumstances which warrants relief under the statute. While the Court is mindful of the feelings expressed by the victim and the personal violation she experienced at the hands of the respondent, her long time neighbor, this proceeding was never intended to punish the respondent. No societal purpose would be served by permanently stigmatizing respondent with the designation of juvenile delinquent (see, In re Winship, 397 US 358, 365), and public policy dictates that this case should not adversely affect respondent's prospects for future educational and employment opportunities (Fam. Ct. Act §380.1).
Accordingly, the motion for relief pursuant to Family Court Act §355.1 is granted to the extent that the adjudication of juvenile delinquency made on March 8, 2011 is hereby vacated.
In addition, the conditional discharge granted on March 8, 2011 is similarly vacated, and in place thereof the Court enters an order adjourning this juvenile delinquency proceeding in contemplation of dismissal for a period expiring on March 8, 2012 (Fam. Ct. Act §§315.3; 355.1 [3]; Matter of Amber F., 23 Misc 3d 1101[A], 2009 NY Slip Op 50531[U]). Upon the expiration of the adjournment period the proceeding shall be deemed to be dismissed in furtherance of justice (Fam. Ct. Act §315.3 [1]; see, Matter of Edwin L., 88 NY2d 593), and the record of this proceeding shall be sealed in accordance with Family Court Act §375.1 [2] [c]).
The order of protection issued on March 8, 2011 is hereby continued until its scheduled expiration on March 8, 2012 (Fam. Ct. Act §352.3 [1]).
Had the Court not granted respondent's motion for relief pursuant to Family Court Act §355.1, in the interest of justice the Court would have granted his motion to seal the record after a finding pursuant to Family Court Act §375.2 (see, Matter of Donald R., 26 Misc 3d 1239[A], 2010 NY Slip Op 50469[U]; Matter of Kiara C., 31 Misc 3d 1245[A], 2011 NY Slip Op 51111[U]).
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This constitutes the decision and order of the Court.
ENTER: