Opinion
D-16718/10.
Decided October 4, 2010.
Counsel: Michael A. Cardozo, Corporation Counsel (Yvette Cheng of counsel), New York City, for Presentment Agency. Christian P. Myrill, Jamaica, attorney for Respondent.
I
This juvenile delinquency proceeding is before the Court for a decision after a dispositional hearing.
By petition filed pursuant to Family Court Act § 310.1 on August 9, 2010 the respondent, Naldo X., who was born on April 7, 1995, was alleged to have committed acts which, were he an adult, would constitute the crimes of Robbery in the Second Degree, Criminal Possession of Stolen Property in the Fifth Degree, and Attempted Assault in the Third Degree. The charges arose out of an incident which occurred in Queens County on August 4, 2010 at 12:30 A.M. during which it was alleged that respondent and two accomplices forcibly stole an I-phone from Robert Espinal. According to Espinal's supporting deposition, respondent and his two accomplices came up behind him riding bicycles on a public street late at night and respondent put his arm around Espinal's neck, "making it difficult for me to breathe." According to Espinal, respondent had so tightly wrapped his arm around his neck that he could not pull respondent's arm off and I was even unable to scream because I couldn't breathe." Espinal's deposition indicates that respondent told him "don't move or I'll stab you', and Espinal then fell or collapsed to the sidewalk, dropping his I-phone from his hand. At this point, respondent still had his arm wrapped around Espinal's neck and Espinal observed one of the two accomplices pick up the I-phone, at which time respondent released his grip and he and the two accomplices got back onto their bicycles and rode away from the scene.
Respondent was arrested by police officers on Corona Avenue at approximately 1:54 A.M. on the date of the incident after Mr. Espinal pointed him out to the arresting officers. The two accomplices, whom respondent informed the police are named "Oscar and Omar", appear not to have ever been arrested for the robbery. Respondent made a statement to police during the arrest processing procedure, informing them that "I met up with Omar and Oscar at 108 and Corona. They started riding bikes. One of them said they wanted to yoke ("rob") people. As they were riding bikes, they saw the first victim. They got off their bikes and one of them grabbed him and went into his pockets. After they got the phone, they kept riding and saw the second victim. Omar or Oscar said to go grab him'. I went behind him and grabbed him by the throat. As one of the other guys was feeling the victim's pockets, the victim started screaming. That's when we got on our bikes and took off."
The police also obtained a written statement from respondent. According to the written statement, respondent indicated that "I meet up with my friend Omar and Oscar and they robbed these two guys and I was there when the cops came. They left and I stayed." Respondent further wrote that "I meet up with Oscar and Omar and I met them [at] 108th and Corona. From there we left to 104 and 45 Avenue, and Oscar pointed out the guy and he ran to him and choked him, and Omar checked his pants pocket and removed his phone. I got on the bike and rode to 90th and 34th Avenue and Oscar pointed out this guy and I ran to him and choked him and I let him go because he was screaming. From 90th and 34th I was riding back by Corona Avenue and got stopped by the police and arrested."
Respondent, who had been detained since the conclusion of a hearing conducted pursuant to Family Court Act § 307.4 on August 6, 2010, appeared in court with his mother, his retained counsel and the Assistant Corporation Counsel on August 11, 2010. At that time, respondent entered an admission that on August 4, 2010 he had committed an act which, were he an adult, would have constituted the crime of Robbery in the Second Degree (P.L. § 160.10), a class C felony, with respect to the incident in which Robert Espinal was robbed. The Court scheduled the case for a dispositional hearing on September 9, 2010 and, in connection with that hearing, the Court directed that the Department of Probation conduct and investigation into respondent's family and personal circumstances and prepare a report of that investigation, as well as a diagnostic evaluation of the respondent by the Family Court Mental Health Services Clinic (Fam. Ct. Act § 351.1). The Court also directed that the Department of Probation undertake an exploration of potential placement resources for the respondent.
The dispositional hearing commenced on September 9, 2010 and the following documents were admitted into evidence ( see, Fam. Ct. Act § 350.3): the written report of the investigation prepared by the Department of Probation, the written report of the diagnostic evaluation conducted by the Mental Health Services Clinic, an affidavit relating to the value of the phone stolen from Robert Espinal, reports concerning respondent's behavior while detained by the New York City Department of Juvenile Justice including results of drug screening of the respondent, an affidavit from the victim of the other robbery committed on August 4, 2010, and respondent's written post-arrest statement concerning the incident given to police officers. The dispositional hearing was continued until October 1, 2010 so that the Department of Probation could conclude its exploration of possible placement resources and so that the respondent could be interviewed by staff of the Juvenile Justice Initiative ("JJI") program, a so-called "alternative to placement" program managed by the New York City Administration for Children's Services ("ACS").
The charges relating to the second robbery mentioned in respondent's statements to the police and for which he was also arrested, were "covered' by respondent's admission in this case.
Respondent's verbal statement was incorporated into the voluntary disclosure form previously served by the Presentment Agency.
A
The Department of Probation conducted an investigation and prepared a written report to the Court in this case ( see, Matter of Alonzo M. v. Department of Probation, 72 NY2d 662, 664). According to Probation Officer John Desenchak, respondent resides with his mother, Carmen D., his grandmother, and his three adult brothers, in Corona, and his father, Lorenzo X., resides in Astoria. With respect to the underlying incident, respondent informed Officer Desenchak, that "on the date of the instant offense he was with two acquaintances riding a bicycle. He states that one of those that he was with saw a person he wanted to rob. Getting off his bicycle, the respondent states that this person began to choke the victim, taking the victim's phone. The respondent advises that he told this acquaintance while he was choking the victim to stop choking him, as he might die. The respondent states that he was later arrested because he was at the scene of the instant offense. The respondent advises that he neither choked the victim nor took anything from him."
Officer Desenchak spoke to the mother of Robert Espinal, the victim of the incident. She informed Desenchak that "her son was choked so tightly during the course of the instant offense that the next day, there was redness under one eye that they' concluded to be blood. She also states that her son's vocal cords were hurting after the instant offense . . .although her son did not require medical attention." Espinal's mother also indicated that her son did not recover his phone after the robbery and that he wished to receive restitution for the I-phone.
Respondent's mother informed the probation officer that Naldo does not present any difficulties at home. He gets along with her, his grandmother and his brothers, and he sees his father, who resides elsewhere, regularly. Respondent confirmed his mother's report, and both indicated no prior history of child neglect or domestic violence in the family. With respect to Naldo's educational status, Officer Desenchak reported that respondent is enrolled in the 8th grade at Intermediate School 5 in Elmhurst, New York. According to respondent's mother, she sent him to reside with relatives and to attend school in the Dominican Republic after one of his brothers passed away in 2009. Respondent's mother further indicated that Naldo returned to the United States "when he became ill" and that after he recovered, she sent him back to the Dominican Republic. Respondent returned to New York once again after he broke his arm and injured his fingers in a motorcycle accident in the Dominican Republic. Respondent's mother indicated that Naldo did not spend much time in school while he resided in the Dominican Republic. According to Department of Education records reviewed by Officer Desenchak, the respondent attended school only 52% of the scheduled time during the 2008-2009 school year prior to being discharged from school in May of 2009. During that academic year, respondent "passes 2 classes and failed 5", and he had been suspended from school on 4 occasions, the most recent of which had been on October 29, 2008 when Naldo was suspended for "using slurs, engaging in intimidating and bullying behavior, engaging in an altercation, and participating in group violence." Respondent's mother was apparently aware of Naldo's problems at school, indicating that she was aware that he had been suspended, that he would roam the halls rather than attend his classes, and that his academic performance was deficient. Finally, respondent indicated that he usually did not complete his assigned homework assignments, and his mother indicated that his curfew is 9:30 P.M. to 10:00 P.M., the time at which she returns home from work.
In his recommendation concerning the most appropriate disposition, Officer Desenchak notes that respondent denied involvement in the robbery of Robert Espinal, although he entered an admission to having committed that act. Additionally, probation noted that respondent's admission to the robbery of Mr. Espinal covered a second robbery arrest. Desenchak further noted that respondent's performance and behavior at school were extremely problematic in that respondent had been suspended for violent and abusive behavior and that he failed 60% of his classes for the semester ending June 2010. Desenchak concluded that given these factors, the absence of capable adult supervision in respondent's home, the violent nature of the incident, and the fact that there was another robbery for which respondent would not be charged, the most appropriate disposition was an order placing respondent away from his home. In a separate document the Department of Probation reported that it had concluded the court-ordered exploration of placement and that respondent has been accepted for placement at Lincoln Hall, an authorized agency that accepts adjudicated juvenile delinquents for treatment ( see, Executive Law § 501; Social Services Law § 371).
The report of Aliza Yanovsky, Ph.D., the Mental Health Services Clinic psychologist who evaluated the respondent was also introduced into evidence ( Matter of Christopher R., 235 AD2d 299). According to Dr. Yanovsky, the respondent who was 15 ½ years old at the time of the evaluation, "related in a somewhat grandiose, inpatient and challenging" manner. Respondent informed Dr. Yanovsky that he parents had separated when he was 7 years old and divorced 3 years later, that he resides in a house with his mother, grandmother and three adult brothers. Respondent noted that his older brothers are usually at work and are not home frequently, that his mother works for transit and she is away from home from 1:45 P.M. until 10:30 P.M., and that his grandmother is not physically well. Respondent stated that after school he goes to the home of his cousin, also 15 years old, and he usually returns home at 9:00 P.M. Respondent indicated that his father is disabled and retired and that he visits him every Saturday at his home in Astoria.
With respect to school, respondent told Dr. Yanovsky that he has no memory of school prior to the 7th grande and that he cannot remember the names of his teachers. He indicated that he had been suspended from his regular school for a month in the last school year "for fighting", stating "they start, you fight. There is nothing you can do about it." Respondent also indicated that he had other suspensions and that he had been suspended for a total of 4 months in the last school year. Respondent informed Dr. Yanovsky that he had not attended school while he was residing in the Dominican Republic, and that he returned to New York after he had been injured in a motorcycle accident in December of 2010. He did not attend school after his return to New York in early 2010 and apparently spent the spring semester of 2010 "at home". During summer of 2010, respondent spent time with his cousin and other family members prior to his arrest on August 4th.
As far as the underlying robbery is concerned, respondent told Dr. Yanovsky that "his friends robbed a kid and I was there, so I am blamed for being there." He stated that these friends are Omar and Oscar who are 19 and 20 years old and he ran into them at about 12:30 A.M. on August 4, 2010 when all three of them were riding bicycles. According to respondent, he was riding home from his cousin's house when he ran into Oscar and Omar on the street. When Dr. Yanovsky stated that the victim, Robert Espinal, said that he choked him violently, respomdent replied that he "did not touch" him. Respondent explained that he admitted guilt "because he was there and because he wanted to get over with the legal process." Dr. Yanovsky inquired how respondent had adjusted to the group home setting where he had been residing since his detention commenced and respondent reported no particular problems but that "he dislikes the structure because this is stressful' and prevents his freedom."
Dr. Yanovsky conducted standard psychological testing of respondent and she reported that he has a "Full-2 IQ consistently in the low average range (86) and the 18th percentile of his age group" and that based upon the WRAT, "his reading ability (that is his word recognition) was assessed to be in the average range (91), ranked in the 27th percentile of his age group, and on a 5-8 grade level. The respondent's general fund of information was fair but his knowledge of science was poor. He was able to solve age appropriate arithmetic problems; his understanding of social situations was fair." Dr. Yanovsky also found that respondent's "impulse control impressed as fair, but poor in the past, [and] [a]bility for insight seems limited. Empathy impressed as underdeveloped." With respect to a specific diagnosis, Dr. Yanovsky diagnosed Naldo as afflicted with "Disruptive Behavior Disorder, Not Otherwise Specified".
In her conclusion, Dr. Yanovsky found that "[t]he respondent impressed as an impulsive, somewhat grandiose youth. His history is noted for his parents' divorce when he was 10 years old. He perceives himself as Dominican and often visits home'. There is an escalation in his antisocial behavior since the 8th grade, [t]he respondent did not return to school after his injury in a motorcycle accident in [December] 2010 . . . [h]e stated that he is interested in school, but he did not demonstrate any motivation. He did not even know his future aspirations . . . [t]he instant offense took place at 12:30 A.M. and reportedly there were two offenses between 12:30 A.M. and 1:08 A.M., which the respondent denied. Reportedly, he was present in one of the offenses and choked the victim in the later offense. His [accomplices], his friends are adults." Dr. Yanovsky also noted that it was significant that respondent's mother "is still traumatized by the loss of [an] older son who committed suicide a year and a half ago and [she] is afraid of losing the respondent", and that there was a lack of any adult supervision of Naldo. Dr. Yanovsky found that respondent's mother "impressed as an ineffective parent" and she concluded that "[i]t is unlikely that this impulsive youth can be rehabilitated in the community. He needs more structure and supervision. At this point, placement is recommended."
Respondent's mother was interviewed separately by Nayibe N. Berger, a licensed clinical social worker who is the Assistant Director of the Mental Health Services Clinic. According to Ms. Berger, respondent's mother "is struggling to regain control of her son's behavior and felt confident that after Naldo's arrest and subsequent remand, he has understood the seriousness of his careless behavior and is promising to improve his behavior and remain out of trouble." Ms. Berger observed that Ms. D. "tended to minimize and justif[y] her son's inappropriate behaviors". For example, with respect to the occurrences in the early morning hours of August 4, 2010, Ms. D. indicated that respondent had gone to the home to a 20 year old friend and that respondent was returning home on his bicycle "when he encountered two acquaintances from the neighborhood [who] invited him to ride . . with them. The respondent told [his] mother that at a certain point these guys decided to rob someone, but that he was just there and he did not participate in the robberies." Ms. D. told Ms. Berger that "since she was not there, she did not know what really happened" and that "while in the police precinct she was not provided an interpreter and that the police intimidated her son by telling him that if he did not admit to the crime they will put him in jail for five years." According to Ms. Berger, when she asked Ms. D. why the alleged police intimidation had not been reported to Naldo's attorney, Ms. D. "indicated that Naldo's attorney had advised him to admit to committing one of the robberies in order to expedite the court process."
Respondent's mother informed Ms. Berger that Naldo's problems at school began in November 2008 when "he started to experience academic and behavioral difficulties. Apparently he was going to school but was remaining in the hallways and he was suspended for one week . . . [i]n January 2009 one of Naldo's brothers committed suicide and he missed about 21 days of school." This lack of school attendance was investigated by ACS, but no further action was taken by that agency. Naldo was subsequently transferred to his current school, I.S. 5 in East Elmhurst and he began to complain of undiagnosed physical ailments and he generally became "resistant to attending school". Ms. D. sent Naldo to the Dominican Republic in March 2009 to live with his maternal grandmother and maternal aunt, but he developed a "stomach infection" and he returned to New York in June 2009. Naldo was enrolled in I.S. 5 for September of 2009 but after a few days, he refused to return to school so Ms. D. sent him back to the Dominican Republic in November 2009. Soon thereafter, Naldo was injured in the motorcycle accident and he returned to New York on December 30, 2009. He did not attend school at all during the semester which began in January of 2010, reportedly due to his need to recover from the injuries suffered in the accident, although it is noted that Naldo failed to attend school while he resided in the Dominican Republic. According to Ms. Berger, the mother's plan was to send Naldo back to the Dominican Republic to attend school in September 2010, but his arrest and detention made that impossible. Thus, Ms. D. "conceded that the respondent had not attended school since March 2009", that although Ms. D. was aware that Naldo could have received home schooling in the spring semester of 2010 while he was convalescing, she made no effort to obtain that service from the Department of Education. Finally, although Ms. D. noted that Naldo had been "deeply affected" by his brother's suicide, she had not arranged for Naldo to receive counseling of any kind.
Because both the Department of Probation report and the report of the Mental Health Services Clinic recommend that the respondent be placed away from his home, Naldo was evaluated at his request by the Juvenile Justice Initiative ("JJI") program of ACS. By letter dated September 27, 2010, JJI was "pleased to inform [the court] that the Juvenile Justice Initiative (JJI) program of the New York City Administration for Children's Services would like to accept Naldo H. into our program to receive Multisystemic Therapy-Extended Care" services through a provider agency which is under contract with ACS.
Michelle Carrera, MSW, a social worker employed by the JJI, met with respondent's mother and the respondent in September 2010. According to Ms. Carrera, the structure of the JJI-MST program was explained to respondent's mother who "reported that she needed services [for] her entire family in an effort to improve their healing and acceptance of the recent loss of her eldest son to suicide [and] her permissive parenting style"(italics added). According to respondent's mother, his behavioral and academic problems stem from the suicide of his eldest brother Adriel in January of 2009 after problems with his girlfriend. This loss, coupled with the separation of Naldo's parents when he was seven, reportedly led Naldo to associate with negative peers and elders, led to oppositional and defiant behavior, a failure to attend school, fighting, school suspensions and his arrest for the underlying incident. Respondent's mother was confident that with the provision of services she will be able to supervise Naldo "effectively" and "differently".
Ms. Carrera interviewed Naldo on September 28, 2010 to discuss the JJI-MST program "as an alternative to placement". While Ms. Carrera found respondent to be receptive and polite and that "he took responsibility for his problematic functioning within his community, school, and [he] acknowledged a need for a change", there is no indication that respondent accepted personal responsibility for his attack upon Robert Espinal or that he was pressed to do so by JJI prior to their acceptance of him into the program. Indeed, respondent simply attributed his present legal circumstances to "wanting to be cool", "I wasn't thinking", "wrong choices", "following friends", "not paying attention" and an inability to "control my behavior". Naldo indicated that he accepts responsibility for his actions, and that he realizes that he must attend school and comply with school rules and regulations as well as those of the JJI program. Notably, respondent told Ms. Carrera that "if the Judge grants me the opportunity to return home, I will change my friends [and][ begin to hang out with good kids'" and that he wishes to participate in the JJI program.
Ms. Carrera concludes her letter by indicating that the Court should "consider placing respondent under probation supervision and mandating his participation in the JJI-MST program as a condition of probation." According to Ms. Carrera's letter, the duration of Naldo's treatment in the JJI/MST-EC program will be 6 to 12 months, after which time Naldo would continue under general supervision by the Department of Probation. Given the comprehensive and specific clinical nature of MST-EC, our program requires that JJI/The Child Center of New York MST/JJI Program be the sole service provider mandated by the Court for Naldo and his family during the course of his involvement with JJI."
II
The dispositional phase of a juvenile delinquency proceeding is divided into two distinct parts. Initially, the Family Court is required to determine whether the juvenile "requires supervision, treatment or confinement" (Fam. Ct. Act § 352.1). If the Court makes such a determination, it is required to enter a finding that the respondent is a juvenile delinquent ( id.). Alternatively, although the Court has previously determined that the juvenile has committed an act which would constitute a misdemeanor or a felony, should the Court determine that the respondent is not in need of supervision, treatment or confinement, the Court is required to dismiss the petition (Fam. Ct. Act § 352.1; e.g., Matter of Jens P., 159 AD2d 707, 708; Matter of Kyung C., 169 AD2d 721; Matter of Ejiro A., 268 AD2d 428, 428-429).
In the event that the Court adjudicates the respondent to be a juvenile delinquent, "Family Court Act § 352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility and, in the case of a juvenile who has committed a designated felony, restrictive placement pursuant to Family Court Act § 353.4" ( Matter of Robert J. , 2 NY3d 339 , 343).
In determining the most appropriate order of disposition, the statute directs that "the court shall consider the needs and best interests of the respondent as well as the need for protection of the community. If the respondent has committed a designated felony act the court shall determine the appropriate disposition in accord with section 353.5. In all other cases the court shall order the least restrictive available alternative enumerated in subdivision one which is consistent with the needs and best interests of the respondent and the need for protection of the community" (Fam. Ct. Act § 352.2 [a]).
The statute expresses no preference for any particular order of disposition, but the order of disposition selected by the Court must be supported by a preponderance of the evidence (Fam. Ct. Act § 350.3; see, e.g., Matter of Tucker J. , 42 AD3d 765 , 767; Matter of Abram E., 69 AD3d 1006, 1007). In selecting the most appropriate order of disposition for an adjudicated juvenile delinquent the Court must consider the needs and best interests of the respondent as well as the need for protection of the community, however it has been observed that "[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; see also, Matter of Timothy C., 31AD3d 1222, 1223; Matter of Pedro A. , 34 AD3d 461 , 461-462).
Juvenile delinquents are not criminals (Fam. Ct. Act § 380.1) and juvenile delinquency proceedings are not designed to punish offenders. Rather, "[t]he overriding intent of the juvenile delinquency article is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public" ( Robert J. at 346; see also, Matter of Jose R., 83 NY2d 388, 394-395; Matter of Benjamin L., 92 NY2d 660, 670). In accordance with these core principles, except in those cases where the respondent has been found to have committed a designated felony act (Fam. Ct. Act § 301.2), the Family Court is required to apply the "least restrictive alternative test" in determining which order of disposition is most appropriate ( 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 ).
While the statute directs that the court utilize the least restrictive alternative in selecting the order of disposition, it is universally accepted that "[t]he least restrictive alternative test does not require the court to actually try the lowest form of intervention, have it fail, and then try each succeeding level of intervention before ordering . . . placement" ( Matter of Anthony M., 142 AD2d 731, 732; see also, Matter of Tristan W., 258 AD2d 585, 586; Matter of Stacy S., 17 AD3d 1146, 1147; Matter of Phillip D. , 27 AD3d 1126 ; Matter of Michael A.M., Jr., 31 AD3d 1183; Matter of Pedro A. at 461; Matter of Austin Q. , 63 AD3d 1224 , 1225). Rather, the Court's duty is to carefully consider and balance the particular needs of the juvenile, available lesser restrictive alternatives to placement, and the risk which the juvenile poses to commit further criminal acts or acts of juvenile delinquency in the event that he or she is returned to or left in the community. This determination obviously turns upon the facts and circumstances of each individual case.
Having carefully considered the evidence adduced in this case, particularly the report and recommendation of the Department of Probation and those of the Mental Health Services Clinic, as well as the facts surrounding the commission of the criminal act to which Naldo H. entered his admission, the Court concludes by a preponderance of the evidence that placement of the respondent in the custody of the New York State Office of Children and Family Services ("OCFS") for a period of 18 months, with a direction that he be placed with Lincoln Hall is appropriate. In reaching this conclusion the Court finds that placement of the respondent is the least restrictive alternative that is consistent with respondent's needs and the need of the community for protection (Fam. Ct. Act §§ 352.2 [c], 353.3).
The Court has fully considered respondent's circumstances, especially the inability of his mother to properly care for and supervise him while he has been in her care. Respondent's antisocial behavior commenced some time ago, yet his mother has not sought to interact with school officials to ensure his school attendance, proper behavior in school, and completion of his courses. Respondent's school attendance has been irregular at best since May of 2008, and it has been interrupted by his temporary residence in the Dominican Republic, where he also did not attend school on a regular basis, the injuries he sustained in the motorcycle accident, and his decision, which does not appear to have been opposed by his mother, not to attend school at all after his most recent return to New York on December 31, 2009. On those occasions in the recent past when respondent has attended school, there are reports that he wandered the hallways rather then attend class, he engaged in fights, bullying and group violence, and he is not passing the large majority of his classes. Neither the respondent not his mother seem to have significant insight into the problems he has at school or the impact which his failure to obtain an education will have upon his future.
The violent nature of the underlying offense involving the victim Robert Espinal cannot be ignored by the Court. While respondent has never accepted personal responsibility for the violent robbery of Mr. Espinal, as recounted in the reports of the Department of Probation and the Mental Health Services Clinic, based upon respondent's post-arrest statement to the police, his statements to Probation Officer Desenchak, his statements to Dr. Yanovsky, and his in-court admission of culpability, the Court has no difficulty in concluding that he, Omar and Oscar committed a violent robbery of an I-phone from Robert Espinal at approximately 12:30 A.M. on August 4, 2010. Moreover, this Court has no reason to disbelieve Espinal's statement in his supporting deposition that respondent choked him from behind with such force and to the point that Espinal collapsed or fell to the ground, allowing the other assailants to take his phone. Respondent and his two companions then fled the scene together on their bicycles. There is also no reason to question the statement of Espinal's mother to Officer Desenchak concerning Espinal's injuries which included pooled blood under one eye and sore vocal cords received as a result of having been violently choked the night before. Respondent was arrested by police officer after a point-out by Mr. Espinal, and respondent did not challenge that identification, although he claims to have merely been a bystander to the incident.
The Court has further considered that respondent's admission as to the Espinal robbery covered an uncharged robbery which involved one, Rajesh Shrestha, who stated in an affidavit that at approximately 1:00 A.M. on August 4, 2010, "approximately three to four individuals" riding bicycles approached him in the vicinity of 85th Street near 35th and 37th Avenues in Queens County, "an individual put his arm around my neck and put pressure against my neck. As that person's arm was around my neck, I heard someone say to me, Give me your phone'. Another individual then punched me in the head [and] I began to scream and the person let go of my neck." Given the similarity between these two incidents, the date and time of day, the Court strongly believes that respondent joined up with his two accomplices that night for the express purpose of prowling the streets in order to locate victims to rob them.
Given respondent's need for remedial education, his diagnosed psychological condition, the inability of his mother or other adults to properly supervise him, and the violent behavior which brought him before this Court, there is little confidence that respondent can be safely maintained in the community, even through his participation in the JJI/MST program. Naldo's behavior indicates that he does not follow directions, that he does whatever he wishes at such time as he pleases, and that he is both disruptive and a threat to the safety of the public. While the JJI/MST program is appropriate for many youngsters, this respondent requires intensive supervision and structure so that he can be rehabilitated and hopefully lead a productive life as an adult. All of the services which JJI/MST can provide can also be provided to respondent by Lincoln Hall and by OCFS at such time as he is conditionally released to his mother on after-care supervision. At this time, respondent's need for services are significant and the risk he poses to public safety is too great to simply release him to his mother with the hope that he will comply with supervision by the Department of Probation and the services offered by the JJI/MST program.
This constitutes the Court's decision upon disposition in this matter. The Clerk shall prepare an appropriate order of placement consistent herewith.