Opinion
Docket No: E33741/19 Docket No: E33743/19
02-18-2020
In the Matter of STEFAN S., A Person Alleged to be Juvenile Delinquents, Respondents.
Laurae Caruth, Assistant Corporation Counsel, for the Presentment Agency Paul Aronson for Respondent Stefan S.
At a Term of the Family Court of the State of New York, held in and for the County of Kings, at 330 Jay Street, Brooklyn, New York on the 18th day of February 2020. PRESENT:
DECISION ON MOTION
NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY THE APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST. Laurae Caruth, Assistant Corporation Counsel, for the Presentment Agency
Paul Aronson for Respondent Stefan S. Beckoff, J:
Respondent Stefan S., age 13, is charged as a juvenile delinquent with committing acts that would constitute Burglary in the Third Degree and related offenses if he were age 17 or older. The Presentment Agency filed two separate designated felony petitions using the same supporting deposition of Rabbi Tzvi Forster of Yeshiva Tiferes Yisroel in Brooklyn. According to Rabbi Forster, on October 14, 2019 and again on October 16, 2019, Respondent was observed on video surveillance entering the Rabbi's office and leaving with a tote bag. The Rabbi also claimed that the lock to his door had been damaged and that United States currency in bills and coins were missing from a locked drawer.
In each of the petitions filed by the Presentment Agency, it charged Respondent with Burglary in the Third Degree, Penal Law § 140.20, a class D felony, as the top count and as a designated felony because Respondent had two prior felony findings. Certified copies of the fact-finding and dispositional orders from those cases were attached to the petitions. See Family Court Act § 311.1(5).
Respondent's counsel moved to consolidate the petitions as well as to strike the designated felony docket prefixes from the docket numbers. On consolidation, Respondent argued that the petitions were based on the same supporting deposition and charged the same offenses arising out of two separate incidents that occurred days apart at the same location. On striking the designated felony prefixes, Respondent argued that the Presentment Agency improperly charged the third-degree burglaries as designated felonies because while Respondent had two felony findings at the time of the alleged incidents, the dispositional orders on those two matters had not yet been entered (even though these dispositional orders had been entered by the time the new petitions were filed).
The Presentment Agency consented to consolidation of the two petitions but opposed the striking of the designated felony prefixes.
Family Court Act § 301.2(8)(vi) defines a designated felony as a crime "other than a misdemeanor" committed by a person between the ages of seven and 17 "but only where there [have] been two prior findings by the court that such person has committed a prior felony." Respondent here had two prior felony findings because on September 3, 2019 he made admissions to Burglary in the Third Degree on two separate petitions. Because those two matters had not yet gone to disposition by the time of the new alleged burglaries - although they had by the time of the filing of the new petitions - Respondent contends that the necessary predicate for the Presentment Agency to file designated felony charges based on these incidents had not been met. This is incorrect.
In Matter of Manuel R., 89 NY2d 1043 (1997), affirming 227 AD2d 355 (1st Dept., 1996), the Court of Appeals held that F.C.A. § 301.2(8)(vi) explicitly requires only that a respondent have two prior felony findings, not two prior delinquency adjudications under F.C.A. § 352.1(1). The Appellate Division, in its underlying decision, said that "the existence of dispositional orders [was] irrelevant" to the Presentment Agency's charging a new felony as a designated felony.
Respondent attempts to distinguish his situation from the one in Manuel R. and relies on Matter of Jose C., 148 Misc2d 113 (Fam. Ct., Westchester County, 1990), arguing that the facts here are analogous to what happened in that case and not in Manuel R., which involved two felony findings that had been combined into a single dispositional order. In Jose C., that respondent's two prior felony findings had not gone to disposition as of the date of the filing of the new petition, and the Family Court held that this required the striking of the designated felony prefix on the new petition.
This argument is unavailing. It does not matter at all that the new alleged burglaries happened between Respondent's admissions to the prior burglaries and the formal adjudications of juvenile delinquency at disposition. Jose C. has been in effect overruled by Manuel R. Also, even if two prior dispositional orders were necessary to charge a respondent with a designated felony under F.C.A. § 301.2(8)(vi), Respondent here was obviously already the subject of such orders. The Presentment Agency attached those orders as well as the fact-finding orders to the petitions, although technically it was not required to do so.
Respondent's motion to strike the designated felony prefixes is denied.
ENTER:
/s/_________
ALAN BECKOFF, JFC Dated: Brooklyn, NY
February 18, 2020