Opinion
XXXXX
02-19-2020
In the MATTER OF M.R. a Person Adjudicated and Alleged to be a Juvenile Delinquent, Respondent.
Kevin Kelly for respondent. Steven J. Getman, County Attorney (Vinton B. Stevens of counsel), for presentment agency.
Kevin Kelly for respondent.
Steven J. Getman, County Attorney (Vinton B. Stevens of counsel), for presentment agency.
Scott A. Miller, J. On or about October 4, 2019, fifteen-year-old M.R. (hereinafter "Respondent") was charged by Juvenile Delinquency Petition with acts which, if committed by an adult, would have constituted the following offenses: Rape in the First Degree in violation of Penal Law § 130.35(1) ), Criminal Sexual Act in the First Degree in violation of Penal Law § 130.50(1), Sexual Abuse in the First Degree in violation of Penal Law § 130.65(1), Endangering the Welfare of a Child in violation of Penal Law § 260.10(1), and Petit Larceny in violation of Penal Law § 155.25. On or about October 30, 2019, the Respondent was charged by a second Juvenile Delinquency Petition with acts which, if committed by an adult, would have constituted the offense of Criminal Mischief in the Fourth Degree in violation of Penal Law § 145.00(1). At a term of the Schuyler County Family Court held on November 19, 2019 (hereinafter "Admission Proceeding"), the Respondent entered admissions to conduct which, if committed an adult, would have constituted the offenses of Criminal Sexual Act in the Third Degree (as a lesser included offense of Criminal Sexual Act in the First Degree) and Criminal Mischief in the Fourth Degree, in full satisfaction of the two petitions.
The Respondent's mother was present at the Admission Proceeding. She was addressed by the Court early in the proceeding. After questioning the Department's attorney and Respondent's attorney about the Department's proposal for the Respondent to enter two admissions in satisfaction of the two pending petitions and immediately be placed upon conditional release, the Court addressed Respondent's mother as follows: "Good afternoon This has all been discussed with you as well, and are you comfortable with your son proceeding this way?" She answered, "Yes." The Court clarified, "Under the circumstances." Respondent's mother replied, "Yes." (Admission Transcript, p. 5, lines 21-25; p. 6, line 1). Although the Court proceeded to engage in a lengthy discourse with the Respondent regarding the rights he would be voluntarily waiving by entering an admission, the Court did not engage in any further colloquy with Respondent's mother as to her understanding of those rights. During the proceeding, the Court made clear to the Respondent that no specific disposition was being promised to him. It advised the Respondent, " there's no promises in terms of what the disposition is, although there is a promise you'll be released today." (Admission Transcript, p. 6, lines 16-18). The Court discussed one potential disposition with the Respondent which was described as the "best case scenario." (Admission Transcript, p. 9, lines 10-16). The Respondent was advised, " you'd probably get Probation for a year, which means somebody's going to be watching over you for a year. And if you violate it, you could get placed. It's not a joke. So why don't you walk to your Mom and your Lawyer for a minute, make sure this is what you want to do." (Admission Transcript, p. 9, lines 11-16). Although "placement" was mentioned as a possible consequence to violating probation, neither the nature nor the length of such placement was discussed with the Respondent or his mother. Furthermore, aside from the "best case scenario," no other potential dispositions were discussed with the Respondent or his mother.
The Respondent now moves the Court for leave to withdraw his admissions arguing that the allocution was improperly conducted, that the Respondent's father was improperly excluded from the proceedings, that the Respondent received ineffective assistance of counsel, and that the totality of the circumstances warrants the relief requested.
Family Court Act § 321.3(1) provides:
"The court shall not consent to the entry of an admission unless it has advised the respondent of his right to a fact-finding hearing. The court shall also ascertain through allocution of the respondent and his parent or other person legally responsible for his care, if present, that (a) he committed the act or acts which he is entering an admission, (b) he is voluntarily waiving his right to a fact-finding hearing, and (c) he is aware of the possible specific dispositional orders. The provisions of this subdivision shall not be waived."
Family Court Act § 321.4(2) provides:
"At any time prior to the entry of a finding under section 352.1 the court in its discretion may permit a respondent who has entered an admission to the entire petition or to part of the petition to withdraw
such admission, and in such event the entire petition as it existed at the time of the petition shall be restored."
In Matter of D.V.S. , 14 Misc. 3d 1216(A), 2007 WL 92764 (Nassau County Family Court, 2007), the Nassau County Family Court denied the respondent's motion to withdraw his admission, holding that the court had "thoroughly reviewed the dispositional alternatives available to the Court on a future date." Id. at *2 . The court described the relevant part of the admission proceeding there as follows, " this Court thoroughly reviewed all of the dispositional alternatives, and in fact specifically told the Respondent that, regarding those alternatives available to the Court on the disposition date: ‘[T]his is what will happen to you. It will be one of these. I don't know which.’ (Trans. p. 6, l.24 — p. 7, l.1). The court then went through all of the dispositional alternatives, and concluded by saying: ‘And it will be one of those on the disposition day " Id. at *4 .
Here, unlike in Matter of D.V.S. , the Court did not enumerate all of the dispositional alternatives which could have resulted from the Respondent's admissions. Rather, only one possible disposition was discussed — the "best case scenario" - that the Respondent would " probably get Probation for a year " (Admission Transcript, p. 9, lines 11-12). Although the Respondent was warned that he could receive placement as a consequence of violating probation, no further details were discussed with him and his mother such as the nature or length of such placement. Indeed, the possibility, nature, and duration of outright placement at disposition (as opposed to placement as a result of a violation of probation) was never discussed with him. As such, the Court failed to comply with the clear, non-waivable mandates of Family Court Act § 321.3(1).
Furthermore, the Court here failed to engage in a sufficient colloquy with the Respondent's mother, who was present at the Admission Proceeding, as to her understanding of the possible dispositional alternatives and as to her understanding of the rights her son would be waiving upon entry of his admissions. Although Matter of Theodore N. , 1 A.D.3d 828, 767 N.Y.S.2d 500 (3rd Dept. 2003) seems to suggest that all that is required of the court is to "confirm that the parents do not object to the child making such an admission." ( Id. at 829, 767 N.Y.S.2d 500 ), several other Third Department cases clearly hold otherwise. In Matter of Kameron VV. , 156 A.D.3d 1272, 68 N.Y.S.3d 210 (3rd Dept. 2017), the Court held that simply asking the respondent's parent whether he or she approves of the respondent's admission is insufficient to meet the provisions of Family Court Act 321.3(1). There the Court held, "Nor do we find that merely asking respondent's mother as to whether respondent's admission to the charge was done with her approval constituted a sufficient allocution of respondent's parent as required by Family Ct § 321.3(1) (see Matter of Allen R. , 214 A.D.2d at 801, 625 N.Y.S.2d 310 ; Matter of Herbert TT. , 192 A.D.2d 916, 917, 597 N.Y.S.2d 194 ( [1993] )." Id. at 1274, 68 N.Y.S.3d 210. Here, as in Matter of Kameron VV , the Court simply asked Respondent's mother whether she was "comfortable with [her] son proceeding this way." (Admission Transcript, p. 5, line 23). There was no further discourse with the mother. Following Matter of Kameron VV , this Court must conclude that there was an insufficient allocution of the Respondent's mother which failed to meet the requirements of Family Court Act § 321.3(1).
The Third Department has been clear that the parent or other person legally responsible for a respondent must allocute that he or she understands the possible specific dispositional orders that could result from the admission and that he or she understands the rights the respondent would be voluntarily waiving by entering an admission. In Matter of Allen R. , 214 A.D.2d 800, 625 N.Y.S.2d 310 (3rd Dept. 1995), the Third Department, reversing an order adjudicating the respondent a juvenile delinquent, held that, " it was the court's obligation to advise respondent of the right to a fact-finding hearing and to ascertain, through an allocution of respondent and his mother , who was present as the proceedings, that he was voluntarily waiving such right and was aware of the possible dispositional orders [emphasis added] (see, Matter of Edgar Q., 185 A.D.2d 432, 585 N.Y.S.2d 633 (3rd Dept. 1992) ; Matter of Brian OO., 158 A.D.2d 816, 551 N.Y.S.2d 401 (3rd Dept. 1990) ; Matter of Paul H. , 154 A.D.2d 943, 546 N.Y.S.2d 71 (4th Dept. 1989) ; see also, Family Ct. Act § 321.3[1][b], [c] )." Id. at 801, 625 N.Y.S.2d 310.
The Third Department reiterated this ruling in two later cases. In Matter of Tiffany MM. , 298 A.D.2d 728, 748 N.Y.S.2d 625 (3rd Dept. 2002), the Court held that, "[the] Family Court should have engaged in a colloquy with respondent's foster mother as to her understanding of those rights that respondent would be waiving as a result of her admission (see Family Ct Act § 321.3[1] ; Matter of Allen R. , 214 A.D.2d 800, 801, 625 N.Y.S.2d 310 ; Matter of Herbert TT. , supra at 917, 597 N.Y.S.2d 194 ; see also Matter of Shantique F ., 223 A.D.2d 590, 591, 636 N.Y.S.2d 407 (2nd Dept. 1996) ). As the provisions of Family Court Act § 321.3(1) cannot be waived (see Matter of Edgar Q., supra at 433, 585 N.Y.S.2d 633 ), the order entered must be reversed." Id. at 729, 748 N.Y.S.2d 625.
Finally, in Matter of Elijah X. , 176 A.D.3d 1356, 110 N.Y.S.3d 756 (3rd Dept. 2019), the Court reversed the lower court's order finding the respondent in violation of his probation, ruling that the respondent's allocution to the violation of probation petition was inadequate. The Court held that the family court failed to question the respondent's mother, who was present, about the respondent's waiver of a fact-finding hearing; that the court failed to determine whether the respondent and his mother understood the possible dispositional orders that might result from the admission; and that the court, while mentioning placement as an "available option," failed to "'ascertain whether [respondent] and his parent[ ] were aware of the full extent of such a disposition' ( Matter of Derick UU. , 298 A.D.2d 654, 654, 748 N.Y.S.2d 288 [2002] ; see Matter of Florence V. , 222 A.D.2d 991, 991, 635 N.Y.S.2d 779 [1195] )." Id. at 1357, 110 N.Y.S.3d 756.
Here, just as in the cases set forth above, the Court failed to engage the Respondent's mother in a discourse to determine whether she was aware of the possible specific dispositional orders which could result from the Respondent's admissions and whether she understood the rights her son would be voluntarily waiving if he chose to enter admissions. As discussed earlier, only one possible specific dispositional order was discussed at all during the proceeding, and it was not discussed with Respondent's mother. Furthermore, although the Court engaged in a dialogue with the Respondent about the rights he would be voluntarily waiving if he chose to enter an admission, no attempt was made to ascertain whether the Respondent's mother understood and consented to the same.
The Court's failure to advise the Respondent and his mother of the potential dispositional orders that could result from his admissions and to engage in a colloquy with Respondent's mother as to her understanding of the rights the Respondent would be voluntarily waiving as a result of his admissions rendered the allocution improper. Given that the provisions of Family Court Act § 321.3(1) cannot be waived, the Court must allow the Respondent to withdraw his admissions. In any event, Family Court Act § 321.4(2) permits the Court in its discretion to allow a respondent who has entered an admission to withdraw the same at any time prior to disposition. Under the totality of circumstances of this case, the Court deems it appropriate to allow the Respondent to withdraw his admissions. In light of the foregoing, it is unnecessary for the Court to address the remaining arguments raised by the Respondent. It is hereby,
ORDERED that the respondent's admissions are vacated; and it is further
ORDERED that the Juvenile Delinquency Petitions which were satisfied by those admissions are restored in their entirety.