Matter of Kelvin H.

[*1] Matter of Kelvin H. 2005 NY Slip Op 50154(U) Decided on February 4, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2005
Family Court, Queens County

In the Matter of KELVIN H., CHRISTOPHER W. and KHARI M., Persons Alleged to be a Juvenile Delinquents, Respondents



D-21567/04



Michael A. Cardozo, Corporation Counsel (Jennifer L. Rubin of counsel), New York City, for Presentment Agency; Keith, Shapiro & Ford

(Richard A. Benson, of counsel), Garden City for Kelvin H.;

Kelton & Teichner (Charles Kelton, of counsel), Kew Gardens for

Christopher W.; Christopher S. Jay, Huntington, for Khari M.

John M. Hunt, J.

By petitions filed on December 17, 2004 respondents are alleged to have committed acts

which, were they adults, would constitute the crimes of Attempted Robbery in the Second Degree

and Menacing in the Third Degree.

Respondents, who are alleged to have acted as both principals and as accomplices in

identical petitions as having committed the charged crimes, have jointly moved to dismiss the

juvenile delinquency petitions as jurisdictionally defective. Specifically, respondents claim that

the petitions do not contain non-hearsay factual allegations which establish their commission of

the charged crimes and that the petitions must be dismissed.

Upon review of the moving papers and the responding affirmation submitted by the

Assistant Corporation Counsel, the Court finds respondents' motions to dismiss the petitions

are without merit for the reasons stated herein.

Family Court Act §311.1 and §311.2 set forth the requirements for a jurisdictionally

sufficient juvenile delinquency petition. Family Court Act §315.1 provides that a petition or [*2]

a count of a petition which does not comply with the requirements of Family Court Act §311.1

and §311.2 is subject to dismissal. "Family Court Act §311.2 measures the sufficiency of a

juvenile delinquency petition by the sum of its two parts: the verified petition and any supporting

depositions filed with the petition" (Matter of Neftali D., 85 NY2d 631, 635). A juvenile

delinquency petition, or a count thereof, is jurisdictionally sufficient when "non-hearsay

allegations of the factual part of the petition or of any supporting depositions establish, if true,

every element of each crime charged and the respondent's commission thereof" (Matter of

Rodney J., 83 NY2d 503, 507; see, Matter of Angel A., 92 NY2d 430, 434). Thus, a juvenile

delinquency petition is both facially and jurisdictionally sufficient when it sets forth a prima facie

case against the respondent (Matter of Jahron S., 79 NY2d 632, 639; Matter of Edward B., 80

NY2d 458, 463-464; Matter of Wesley M., 83 NY2d 898, 899; Matter of Rodney J., at 507;

Matter of Neftali D., at 635-636; Matter of Angel A., at 434).

"The sufficiency requirements set forth in Family Court Act §311.2 are not simply

technical pleading requirements but are designed to ensure substantive due process protection

to an accused juvenile delinquent, who can be arrested and deprived of liberty based upon the

petition" (Matter of Neftali D., at 634-635; accord Matter of Detrece H., 78 NY2d 107, 111).

The Presentment Agency's argument that "[t]he purpose of a petition is not to prove a case

against the accused, but simply to advise him of the crimes charged", is simply incorrect.

Although that interpretation of Family Court Act §311.1 and §311.2 was formerly set forth in

some appellate court decisions (e.g., Matter of Dirhim A., 178 AD2d 339, 341; Matter of Jose

M., 178 AD2d 343, 345-346, 186 AD2d 399 [recalling and vacating prior order], 186 AD2d

388 [dismissing juvenile delinquency petition]), those decisions are not controlling in light of [*3]

numerous decisions of the Court of Appeals which clearly hold that the prima facie case standard is applicable to juvenile delinquency petitions (e.g., Matter of Jahron S., at 638; Matter of

Edward B., at 464-464; Matter of Angel A., at 434).

The petitions before the Court allege that the respondents committed acts which would

constitute the crimes of Attempted Robbery in the Second Degree and Menacing in the Third

Degree. With respect to the Robbery charge, respondents contend that the petitions fail to set

forth non-hearsay allegations which would establish, if true, that they attempted to rob the

alleged victim. With respect to the Menacing charge, respondents argue that there are no non-

hearsay facts that would establish, if true, that they intentionally placed the alleged victim in

fear of serious physical injury, physical injury or death.

Count One of the petition alleges that the respondents committed acts which would

constitute then crime of Attempted Robbery in the Second Degree. Three Penal Law sections are

relevant to this crime. Count Two of the petition alleges that the respondents committed acts

constituting the crime of Menacing in the Third Degree.

Penal Law §160.00 provides that:

Robbery is forcible stealing. A person forcibly steals property and commits

robbery when, in the course of committing a larceny, he uses or threatens the

immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of property or to the

retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up

the property or to engage in other conduct which aids in the commission of

the larceny. [*4]

Penal Law §160.10 (1) provides that:

A person is guilty of robbery in the second degree when he forcibly steals property

and when: (1) he is aided by another person actually present.

Penal Law §110.00 provides:

A person is guilty of an attempt to commit a crime when with intent to commit a

crime, he engages in conduct which tends to effect the commission of such crime.

With respect to Count Two of the petition, charging the respondents with committing

acts which would constitute the crime of Menacing in the Third Degree, Penal Law §120.15

provides that:

A person is guilty of menacing in the third degree when, by physical menace, he

or she intentionally places or attempts to place another person in fear of death,

imminent serious physical injury or physical injury.

The crime of robbery is divided into three distinct offenses in article 160 of the Penal

Law. "The essence of the crime of robbery is forcible stealing. Under Penal Law §160.00,

a robbery occurs when a person forcibly steals property by the use of, or the threatened use of,

immediate physical force upon another person for the purpose of compelling that person to

deliver up property or to prevent or overcome resistance to the taking" of the property (People

v. Miller, 87 NY2d 211, 214; see, People v. Lopez, 73 NY2d 214, 219; People v. Woods, 41

NY2d 279, 281). "The lowest robbery offense, robbery in the third degree, is committed when a

person engages in behavior that results in the forcible taking of another's property . . . [t]he core

crime is elevated to robbery in the second degree when defendant is aided by another person or

where the consequences of the forcible taking are aggravated because the robber or the

accomplice displays a firearm or causes physical injury to a nonparticipant . . . The most serious [*5]

robbery offense, robbery in the first degree, is committed when, in the course of the forcible

taking or property or immediate flight from the crime scene, the robber or another participant in

the robbery causes serious physical injury to any person who is not a participant in the crime, or

is armed with a deadly weapon, or uses or threatens the immediate use of a dangerous instrument,

or displays some type of operable firearm" (People v. Miller., at 214-215 [internal citation

omitted]; see also, People v. Lopez, at 219).

Additionally, an attempt to commit a crime is punishable as a separate and distinct

offense under the Penal Law (P.L. §110.00). While the actor may fail in his or her commission

of the underlying or object crime, the actor is guilty of an attempt to commit the underlying crime

"because attempted criminal conduct is a danger to organized society and therefore independently

culpable even though the intended result does not ensue" (People v. Miller, at 215; see, People v.

Bracey, 41 NY2d 296, 299; People v. Campbell, 72 NY2d 602, 605). "In other words, an attempt

is an act done with an intent to commit some other crime" (People v. Coleman,74 NY2d 381,

383; see, People v. Saunders, 85 NY2d 339, 342), and "[i]n order to prove an attempt, it is

necessary to establish (1) that the defendant had the intent to commit a specific offense; and

(2) that the defendant engaged in some affirmative act to carry out that intent"(Coleman, at 383;

see, Bracey, at 299).

In this case, the supporting deposition of the alleged victim, David E., states, inter alia,

that on December 16, 2004 in Queens County "the [r]espondent Christopher W., [r]espondent

Khari M. and [r]espondent Kelvin H. did forcibly steal property and aided by another person

actually present and did retrain [sic] me and did by physical menace, intentionally place or

attempt to place me in fear of death, imminent serious physical injury, or serious physical injury [*6]

in that: [respondents] approached me together and surrounded me and hovered over me and

asked me if I had any money and I told them 'no' and then I observed the all three [r]espondents

[sic] immediately walk away together at the same time that I observed two Police Officers at

the scene. During this incident I was afraid of death, imminent serious physical injury or physical

injury because all three [r]espondents surrounded me. I was afraid they might hit me and cause

me injury."

Bearing in mind that "the prima facie case requirement is not the same as the burden of

proof beyond a reasonable doubt required at trial" (People v. Henderson, 92 NY2d 677, 680),

a review of the supporting deposition of the alleged victim reflects that there are sufficient non-

hearsay allegations to establish a prima facie case against all three respondents with respect to

both crimes charged in the petitions.

The allegations in the petition that the respondents surrounded and closely hovered

around the victim can be viewed as an attempt to intimidate the victim and is indicative of a

threatened use of force for the purpose taking the victim's property or causing him to deliver up

money or other property. While there is no proof that the completed crime of Robbery in the

Second Degree was committed and the petition indicates that the respondents "walked away"

when Police Officers appeared nearby, the factual allegations establish, if true, that the

respondents had the intent to commit a forcible stealing and that they took affirmative steps to

effect the commission of the robbery. The respondents' threatened use of force to obtain

property from the victim may be inferred from the totality of the circumstances, including their

conduct in surrounding and hovering over him while asking him for money (People v. Lopez,

161 AD2d 670, 671, lv. denied 76 NY2d 860; Matter of Eric R., 213 AD2d 310, 311; Matter of [*7]Nehial W., 232 AD2d 152; People v. Marcano, 248 AD2d 157, 158, lv. denied 91 NY2d 1009;

People v. Spencer, 255 AD2d 167, 167-168, lv. denied 93 NY2d 879; People v. Thomas, 273

AD2d 161, 162, lv. denied 95 NY2d 908; People v. Rychel, 284 AD2d 662, 663).

Similarly, respondents' alleged conduct in surrounding the victim and hovering over

him while demanding money establishes, if true, the crime of Menacing in the Third Degree

(e.g., Matter of William A., 219 AD2d 494, 495; Matter of Pedro H., 308 AD2d 374), based

upon the victim's claim that respondents' actions placed him in fear of death, imminent serious

physical injury or physical injury (P.L. §120.15). Nevertheless, while the menacing charge is

facially sufficient (Matter of Edward B., supra), in order to prove this case at trial the Present-

ment Agency will be required to prove beyond a reasonable doubt that the victim had a well-

founded fear of death, imminent serious physical injury or physical injury (see, Matter of Akida

L., 170 AD2d 680, 681; Matter of Michael H., 294 AD2d 364, 365; Matter of Steven W., 294

AD2d 370, 371; Matter of Rosalis D., 305 AD2d 407, 408; Matter of Wanji W., 305 AD2d 690,

691).

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

February 4, 2005