Matter of Christine B.

[*1] Matter of Christine B. 2004 NY Slip Op 51570(U) Decided on December 10, 2004 Family Court, Queens County Hunt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 10, 2004
Family Court, Queens County

In the Matter of CHRISTINE B., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-16688/04

John M. Hunt, J.

Respondent has moved for dismissal of several counts of the petition upon the ground

that her constitutional right to a speedy fact-finding hearing has been violated.[FN1]

By petition filed on October 8, 2004 respondent is alleged to have committed acts

which, were she an adult, would constitute the crimes of Assault in the Second and Third

Degrees, Menacing in the Second Degree, Menacing in the Third Degree (5 counts), Unlawful

Imprisonment in the Second Degree, and Harassment in the First Degree. The charges in the

petition are based upon acts which are alleged to have occurred between July 7, 2003 and

approximately September 29, 2004.

By motion filed on November 8, 2004, respondent moved, inter alia, for an order

dismissing this and a subsequently filed juvenile delinquency proceeding upon the ground that

her constitutional right to a speedy trial has been violated. By order dated November 23, 2004

this Court denied the motion to dismiss the later filed petition on speedy trial grounds, and [*2]

directed that the Presentment Agency submit a further affidavit or affirmation setting forth\

the circumstances giving rise to the delay between the date of the alleged incidents and the

filing of the first petition against the respondent on October 8, 2004.

The petition filed on October 8, 2004 alleges that the respondent in concert with others,

inter alia, assaulted and committed other crimes against the alleged victim, Amanda E., on"July

7, 2003" and "on several dates on or about and between July 7, 2003 and September 29, 2004"

and that as a result of these incidents Amanda E. sustained serious physical injury or physical

injuries. On September 29, 2004 respondent was arrested by police officers from the 100th

Precinct for the acts alleged in the October 8, 2004 petition, and officers from the same precinct

arrested respondent on October 7, 2004 for the act alleged in the November 3, 2004 petition.[FN2]

In support of the motion to dismiss the petition, respondent contends that Counts One

through Six of the petition violate her constitutional right to a speedy trial under the Court of

Appeals decision in Matter of Benjamin L. (92 NY2d 660, 667).[FN3] Those counts involve incidents

which are alleged to have occurred "on or about July 7, 2003" and "on several dates on or about

and between July 7, 2003 and September 29, 2004". The Presentment Agency opposes the

motion to dismiss and has submitted the requested affirmation setting forth the circumstances

involved in the investigation of the charges and the filing of the petition on October 8, 2004. The

affirmation of the Assistant Corporation Counsel states, in pertinent part, that: [*3]

The incident that occurred on July 7, 2003 was not reported on that same day

because the [victim's] mother believed that the issue could be resolved in that

she knew the [r]espondent's mother. An incident that occurred on the following

day in which the [r]espondent and several other females yelled out disrespectful

statements from a window at the [victim], as well as the lack of cooperation by

the [r]espondent's mother caused the [victim] and her mother to report the

incident to the police on July 8, 2003. After the [victim] filed a complaint, the

[victim's] mother continued to try to resolve the matter with the [r]espondent's

mother, but due to lack of cooperation on behalf of the [r]espondent and her

mother, there was no resolution.

From conversations with Detective Hoverington of the 100th Precinct and other

individuals in the detective squad, it was learned that the case was closed on

December 1, 2003 because "all leads were exhausted". From Detective

Hoverington's recollection, he had several conversations with the [victim] and

her mother who decided not to go forward with the case because no further

incidents had occurred and they were in fear that if a case was pursued, that it

would cause the [r]espondent to begin harassing the [victim] again.

The [victim], however, does not recall informing the police department that

she did not want to go forward. The [victim] and her mother were upset when

they learned that the case was closed.

Since December 1, 2004 when the July 7, 2003 case was closed by the detective

squad, the police department next received a complaint by the [victim] against

respondent on July 29, 2003. A further complaint report was filed by the [victim]

against the [r]espondent on September 23, 2004 and September 29, 2004. A final

complaint report was filed by the [victim] against the [r]espondent on October

7, 2004.

An accused juvenile delinquent has a constitutional right to a speedy trial, that is, the

timely commencement of juvenile delinquency proceedings (Matter of Benjamin L., at 667; see,

In re Thomas J., 372 Md 50, 811 A2d 311 [Ct App 2002]), and an unreasonable delay in

commencing a juvenile delinquency proceeding may constitute a violation of the juvenile's

due process rights, as recognized by appellate courts of this and other jurisdictions (Matter of

Benjamin L., at 667; In re Thomas J., 373 Md 50, 70-72, 811 A2d 310, 322-324 [Ct App 2002]; [*4]

In re Timothy C., 376 Md 414, 431, 829 A2d 1024, 1033 [Ct App 2003]; In re D.H., 666 A2d

462, 472-473 [DC Ct App 1995]; Matter of Darcy S., 123 NM 206, 211, 936 P2d 888, 893

[Ct App 1997]).[FN4] However, all delay which occurs between the commission of a crime and the

filing of a delinquency petition or between the arrest of a juvenile and the filing of a petition is

not necessarily of constitutional magnitude (Matter of Timothy C., at 431). Thus, as a general

rule, dismissal of a petition on constitutional grounds is warranted only where the delay involved

is significant and has resulted in prejudice to the respondent, or where the Presentment Agency

fails to provide an explanation of the delay (see, Matter of Benjamin L., at 670; Matter of Jamie

D., 293 AD2d 278).

Upon review of the papers submitted upon the motion, this Court concludes that the

facts of this case militate against dismissal. The petition and the supporting deposition of the

alleged victim allege that the respondent committed acts constituting Assault in the Second

and Third Degrees, Unlawful Imprisonment in the Second Degree, and Menacing in the Third

Degree on July 7, 2003. In addition, the petition alleges that respondent committed acts which

would constitute Menacing in the Second and Third Degrees and Harassment in the First Degree

"on several dates on or about and between July 7, 2003 and September 29, 2004".

Here, the length of time between the acts alleged to have been committed on July 7, 2003

and the date upon which the petition was filed, October 8, 2004, is approximately 14 ½ months

(Counts One, Two, Four and the first Count Six). The length of time between the act alleged to [*5]

have been committed "on or about and between August 15 and August 31, 2003" and the date

upon which the petition was filed is and the delay is approximately 13 months (the second Count

Six). With respect to the crimes charged in Counts Three and Five of the petition which are

alleged to have been committed "on or about July 7, 2003 and September 29, 2004", the length

of time between the date of the alleged offenses and the date the petition was filed ranges from

a maximum of 14 ½ months to possibly hours or minutes.[FN5]

As a general rule, the mere passage of time between the alleged commission of a crime,

the arrest of the perpetrator and commencement of judicial proceedings does not automatically

entitle a defendant or a respondent to dismissal of the charges (see, People v. Taranovich, 37

NY2d 442, 444-445). However, where "commencement of the action has been delayed for a

lengthy period, without good cause, the defendant may be entitled to a dismissal" (People v.

Singer, at 254). While the length of time between the date of the commission of some of the

crimes charged in the petition exceeds the slightly more than 13 month period at issue in Matter

of Benjamin L., a review of the petition and other papers before the Court indicates that this case

is factually and legally distinguishable from Matter of Benjamin L., supra.

In Matter of Benjamin L., the respondent was arrested for attempted robbery and

menacing on July 7, 1994. On the following day, a pre-petition detention application was filed

with the Family Court pursuant to Family Court Act §307.4 and the Court denied the application [*6]

and released the respondent to the custody of his mother upon condition that he observe a curfew

(Fam. Ct. Act §§307.4 [4]). No further court action occurred until August 2, 1995 when the

County Attorney filed a juvenile delinquency petition against the respondent for the July 7, 1994

incident. Respondent moved for dismissal of the petition and the motion was denied. The Family

Court subsequently adjudicated respondent to be a juvenile delinquent and placed him under

probation supervision for a period of one year.

The Court of Appeals found that "[i]n light of the need for swift and certain adjudication

at all phases of a delinquency proceeding . . . the speedy trial protections afforded under the Due

Process Clause are not for criminal proceedings alone and are not at odds with the goals of

juvenile delinquency proceedings" (92 NY2d, at 668). The Court held that a juvenile's motion

for dismissal of a petition upon speedy trial grounds should be evaluated through consideration

of the five factors set forth in People v. Taranovich (37 NY2d 442) which are applicable to

constitutional speedy trial claims raised in criminal prosecutions (Matter of Benjamin L., at 668).

In addition to the five Taranovich factors: the extent of the delay, the reason for the delay,

the nature of the underlying charge, whether there has been an extended period of pretrial

incarceration, and whether there is any indication that the defense has been prejudiced or

impaired by the delay (People v. Taranovich, at 445; People v. Vernace, 96 NY2d 886, 887;

Matter of Benjamin L., at 668), the Court indicated that because there is a policy of swift and

certain adjudication applicable to juvenile delinquency proceedings as well as other unique

circumstances which are relevant where a juvenile is accused of committing criminal acts, such

as "the nature of adolescence", the need for the court to exercise its rehabilitative authority

promptly in relation to the unlawful behavior in order to demonstrate that illegal behavior has [*7]

consequences, the fact that many juveniles "suffer from educational handicaps and mental health

problems which undermine their capacity to anticipate a future [prosecution] and to appreciate

the need to take self-protective measures", and that a juvenile "is more likely to suffer from a

lack of memory than an adult . . . [and] is less likely than an adult to preserve his or her memory

concerning the incident in question, his or her whereabouts on relevant dates, the identity of

potential witnesses, and various other crucial details" (Id, at 669), the court's analysis "cannot

merely mimic that undertaken in criminal cases" and it must also take into account "the needs

and best interests of the respondent and the needs of the community" (Id., at 670).

In this case, the respondent is alleged to have committed a series of crimes comprised of

a course of conduct against a single victim over a period of time spanning July 7, 2003 to

September 29, 2004, as opposed to the juvenile in Matter of Benjamin L., who was charged with

committing two crimes against one victim over a year prior to the filing of the petition. Accord-

ing to the Presentment Agency, after respondent committed the acts alleged to have occurred on

July 7, 2003, the victim's mother took steps to mediate the situation with the respondent's

mother whom she knew. On July 8, 2003, the respondent and others allegedly yelled at the victim

so the victim's mother reported the July 7th incident to the police. Subsequent to reporting the

July 7th incident to the police, the victim's mother continued to seek an informal resolution

through respondent's mother. Apparently, there were no incidents between July 8, 2003 and

December 1, 2003 and the case was not referred to the Presentment Agency, no arrest was made,

and the police closed the case. Subsequently, on July 29, 2004, September 23, 2004, and

September 29, 2004 the victim reported further incidents involving the respondent and the police

arrested the respondent on September 29, 2004. [*8]

Thus, given that the respondent is alleged to have engaged in a continuing course of

unlawful activity against one victim spanning a period of over one year, it is not reasonable to

assume that she, unlike the juvenile in Matter of Benjamin L., may be unable to defend herself

against the charges in the petition. As a general rule, the mere passage of time between the

alleged commission of a crime and the arrest of the perpetrator and commencement of judicial

proceedings does not automatically entitle a defendant or a respondent to dismissal of the charges

(see, People v. Taranovich, 37 NY2d, at 444-445). Here the victim's mother attempted to

informally resolve the dispute between the respondent and the alleged victim, and the

respondent's argument that the petition should be dismissed on the ground that she was not

arrested and prosecuted earlier is meritless (People v. Magar, 8 AD3d 689, 690).

Additionally, a court should be reluctant to dismiss a petition on constitutional speedy

trial grounds where there is good cause for a delay in commencing proceedings , such as a need

by police or a prosecutor to investigate the crime, a need to identify and locate the offender and

witnesses, and a need to gather sufficient evidence with which to prosecute the case, as appears

to have been the case here. Courts have found that "a determination made in good faith to defer

commencement of the prosecution for further investigation or for other sufficient reasons, will

not deprive the defendant of due process of law even though the delay may cause some prejudice

to the defendant" (Id., at 254; People v. Lesiuk, at 491; see, People v. Torres, 257 AD2d 772,

773, lv. denied, 93 NY2d 903; People v. Mitchell, 301 AD2d 451, 452, lv. denied 99 NY2d 630).

In this case, the Presentment Agency has presented a sufficient explanation for the delay

in the filing of the juvenile delinquency petition and there is no indication that the delay was

attributable to bad faith on the part of the police or the Presentment Agency, or that the delay [*9]

has undermined the rehabilitative goal of the proceeding or resulted in prejudice to the ability

of the respondent to present a defense to the charges (Matter of Kelvin R., 298 AD2d 183; Matter

of Louis P., 304 AD2d 501). Accordingly, respondent's motion to dismiss the petition filed on

October 8, 2004 is denied.

This constitutes the order of the Court.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

December 10, 2004 Footnotes

Footnote 1:Respondent has moved for dismissal of Counts One through Six of the petition. The Court notes that there are two counts numbered six in the petition and the motion to dismiss has been considered with respect to both of these counts.

Footnote 2:As noted previously, respondent's application to dismiss the petition filed against her on November 3, 2004 (Docket Number D-18589/04) was denied by order of the Court dated November 23, 2004.

Footnote 3:There are two incidents charged as Count Six in the petition. The first Count Six refers to a crime which was allegedly committed on July 7, 2003 and the other refers to a crime which was allegedly committed "on or about and between August 15 and August 31, 2004.

Footnote 4:The constitutional right to a speedy trial is separate and distinct from the statutory right to a speedy fact-finding hearing which applies after the filing of a petition (Fam. Ct. Act §§310.2, 340.1; Matter of Frank C., 70 NY2d 408, 411; Matter of Randy K., 77 NY2d 398, 402; Matter of Bernard T., 92 NY2d 738, 745; Matter of George T., 99 NY2d 307, 311-312).

Footnote 5:The Court need not determine at this stage of the proceedings whether the second Count Six which charges the respondent with Menacing in the Third Degree is a duplicitous count as alleged in the petition (see, Fam. Ct. Act §§311.1 [3] [g]; 311.2 [1]; 315.1; e.g., Matter of Robert H., 152 AD2d 572). The counts charging Menacing in the Second Degree and Harassment in the First Degree appear to be "continuing crimes" in that the statute does not necessarily contemplate a single act (see, People v. Keindl, 68 NY2d 410, 421; People v. Shack, 86 NY2d 529, 540; People v. Simmons, 92 NY2d 829, 831).