People v Simmey R.

[*1] People v Simmey R. 2006 NY Slip Op 51500(U) [12 Misc 3d 1189(A)] Decided on July 5, 2006 Criminal Court Of The City Of New York, Kings County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Simmey R. and RONALD R., Defendants.



2006KN033661

Michael J. Gerstein, J.

The defendants, sixteen year old Simmey R.[FN1] and seventeen year old Ronald R, were arrested on May 16, 2006 on charges of Criminal Contempt in the Second Degree (PL § 215.50(3)), a class A misdemeanor punishable by up to one year in jail, based on allegations that they both violated limited orders of protection ordering that they refrain from "assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offense" against their mother, Linda P. Defendants purportedly violated these orders of protection by allegedly entering their mother's locked bedroom in the apartment all three call home.

The facts of this case, which was dismissed at arraignment on May 17, 2006 for facial insufficiency of the complaint, evince a family more in need of social services than criminal justice. This decision is written to set forth the reasons for dismissal, and to note a recurring problem with cases involving minors who have appeared before this Court for arraignment on charges where the complaining witness is their parent.

The limited orders of protection at issue in this case were issued under prior docket numbers wherein Defendants were charged with Petit Larceny (PL § 155.25), based on allegations that Defendants entered their mother's locked bedroom and stole cash from her pocketbook. Defendant Simmey R. was further charged with Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) and Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01(1)) under the prior docket number, based on allegations that he possessed the cash that was allegedly taken from his mother's purse, as well as a gravity knife. Both prior cases were adjourned in contemplation of dismissal pursuant to CPL § 170.55 on February 23, 2006. Aside from these matters, Defendants have had no contact with the criminal justice system.

Linda P, the complaining witness and Defendants' mother, was present at arraignment of the instant case. She informed defense counsel that she did not wish her sons to be prosecuted for the alleged offense. After discussing the matter with Ms. P, the Assistant District Attorney chose [*2]to continue prosecution. Based on the allegations that Defendants violated the prior limited orders of protection, the People requested full orders of protection as to each Defendant. The full orders of protection would require, under penalty of contempt, that the minor Defendants have no contact with the protected party, and, among other things, that they stay away from their mother's home.

When the Court noted that the requested full orders of protection would eject the minor Defendants from their own home, the District Attorney instead requested limited orders of protection, similar to those which had been issued under the prior dockets, which would allow Defendants to remain in their home with their mother. As a result of Defendants' motion to dismiss the Complaint at arraignment, the Court found it unnecessary to rule as to whether any orders of protection would be appropriate.

Facial Insufficiency of the ComplaintIn order to be sufficient on its face, a misdemeanor complaint must allege facts sufficient to provide reasonable cause to believe that the defendant committed the offense charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986).

To make out the charge of Criminal Contempt in the Second Degree, the People must at minimum allege sufficient facts to make out some criminal offense committed by Defendants against their mother. Had Defendants been alleged to have entered a third party's home without permission or authority, that would make out a charge of Criminal Trespass in the Second Degree (PL § 140.15). The Complaint merely alleges that Defendants were found inside their mother's locked bedroom in the apartment in which they all reside.

As a result of the limited orders of protection issued under the prior dockets, Defendants were required to refrain from committing any criminal act against their mother. The issue here is whether the act of entering their mother's locked bedroom, if proven, may constitute a criminal act and thereby be sufficient to make out the charge of criminal contempt. This Court holds that it is not.

Defendants, who reside with their mother, are legal residents of the apartment. As such, they, together with their mother, are entitled to occupy every part of the premises. See generally Myers v. Bartholomew, 91 NY2d 630, 633, 697 NE2d 160, 161, 674 NYS2d 259, 260 (1998). While each family member may have certain areas, such as a bedroom, set aside primarily for their individual use as a matter of convenience, that is an informal arrangement which may be changed from time to time with the family or other occupants.[FN2]

We may assume for purposes of argument that Defendants' mother had designated a bedroom for her own use, and had reinforced her decision by locking the door to her bedroom for the purpose of excluding Defendants from that room. Ms. P. was well within her rights in so doing, as the result of her status as the mother of the minor Defendants. Defendants, as minors, are obligated to obey their mother. Roe v. Doe, 29 NY2d 188, 194, 272 NE2d 567, 324 NYS2d 71 (1971) ("The obligations of parenthood, under natural and civil law, require of the child submission to reasonable restraint, and demand habits of propriety, obedience, and conformity to domestic discipline." (citations omitted)); see generally Troxel v. Granville, 530 U.S. 57, 65, 120 [*3]S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56 (2000) ("[T]he interest of parents in the care, custody, and control of their children... is perhaps the oldest of the fundamental liberty interests recognized by this Court."). But so long as Defendants continue to share their mother's home as their residence, their act of entering her locked bedroom, while disobedient and perhaps worthy of domestic discipline, does not constitute a crime.

Given that the acts allegedly committed by Defendants do not constitute a criminal offense against their mother, Defendants have not violated the limited orders of protection issued under the prior dockets. Accordingly, the charges of Criminal Contempt in the Second Degree are dismissed as against both Defendants.

Responsibility of a Parent Towards a Minor Child

Parents are responsible for the shelter and financial support of their minor children. Under NY Fam. Ct. Act § 413, "the parents of a child under the age of twenty-one years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine."[FN3] This includes the obligation to provide shelter for the minor, even when the minor disobeys the parent or engages in delinquent behavior. Roe, 29 NY2d at 193.

Ms. P, as Defendants' mother, is legally responsible for providing a home for Defendants. As the Court noted at arraignment, the full orders of protection initially requested by the People would at the least permit, if not require, the Complainant to escape the burden of her responsibilities towards her minor children via an act of transformation whereby, as she becomes "alarmed and annoyed"[FN4], her children become alleged criminals.

This case, insofar as the People seek to evict minor children from their home, is not unique. While presiding over arraignments, this Court has seen a number of cases where the People have sought full orders of protection excluding minors from their own homes, based on crimes they have allegedly committed, which, like the allegations herein, do not involve any violence against their parents [FN5]. They appear to constitute disputes between parents and their teenage children of a nature which is common throughout contemporary society.[FN6] Indeed, the notes of the Judge who presided at arraignment of the prior dockets indicate that the People [*4]contended Defendants were "out of control" and that Defendants disputed this allegation.[FN7]

Concurrent Jurisdiction of Criminal Court and Family Court

Criminal Court shares concurrent jurisdiction with Family Court over any proceedings concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, reckless endangerment, assault in the second degree, assault in the third degree, or attempted assault between a parent and child, except where the respondent would not be criminally responsible by reason of age. NY Fam. Ct. Act § 812(1); CPL § 530.11(1). Persons less than sixteen years old are not criminally responsible by reason of age. PL § 30.00(1).

A parent who feels threatened by his or her sixteen or seventeen year old child therefore has the option of addressing the matter in Family Court, alerting the police so that the People may bring criminal charges against the child in Criminal Court, or following both routes concurrently. Pursuant to CPL § 530.11(2)(h), upon the complainant's first appearance before the Court, the Court is required to advise the complainant of the option of proceeding in Family Court as well as or instead of Criminal Court. The Police Department is also required to advise the complainant of his or her rights upon the filing of an accusatory instrument.

Cases Involving Family Disputes Should Be Brought in Family Court

Where no physical injury has been sustained or alleged, this Court believes that cases involving allegations such as those in the instant case, the essence of which is conflict between children and their parents, are better brought in Family Court than in Criminal Court. Proceeding in Family Court would allow the complex issues raised in such situations to be addressed in a forum with expertise in family matters [FN8], without subjecting minor children to the stigma of criminal charges. Given the nature of such cases, the Court suggests that the People use their [*5]discretion [FN9] to protect not only the parents in these cases, but the children as well.

The Family Court was formed to create a unified jurisdiction to handle the care and protection of the young and preservation of the family. NY Fam. Ct. Act § 812(2)(b); L 1962, ch 686. Criminalizing minor children for non-violent offenses against their parents may irrevocably damage the family relationship. What kind of relationship can a child have with a parent whom the child believes to be responsible for the stigma that attaches after criminal charges have been brought? Family Court exists for precisely this purpose, to handle these disputes while keeping the family intact. Id.

The Court is not suggesting that a parent who is threatened or injured by their minor child should have no remedy against or protection from their aggressor. A parent may file a petition in Family Court alleging that a child under the age of 18, as are both Defendants herein, is a Person in Need of Supervision ("PINS"). NY Fam. Ct. Act § 732; Fam. Ct. Act § 712; see also Letter from Mary Lou Rath, State Senator, to Hon. James M. McGuire, Executive Counsel to the Governor (July 6, 2000), NY Bill Jacket, 2000 S.B. 674, ch. 596. The Family Court has the power to place the child in detention on a temporary basis as soon as a petition is filed in Family Court. NY Fam. Ct. Act § 720; NY Fam. Ct. Act § 739. The Family Court may also issue its own order of protection on behalf of the parent as against the child. NY Fam. Ct. Act § 759. And in certain cases, particularly those where physical violence is alleged, it may be appropriate to bring criminal charges against a minor.

Under the Constitution of the State of New York, the County Courts retain the power to transfer "any action or proceeding, except a criminal action or proceeding involving a felony prosecuted by an indictment or an action or proceeding required... to be dealt with in the surrogate's court or the family court, to any court, other than the supreme court, having jurisdiction of the subject matter within the county provided that such other court has jurisdiction over the classes of persons named as parties." NY CLS Const. Art VI, § 19(b).

However, Criminal Court does not have the power to make such a transfer. Under former NY Fam. Ct. Act § 813, repealed L 1977, ch. 449, § 2, Criminal Court was required to transfer such cases to Family Court. That requirement was repealed in the same bill that took exclusive jurisdiction over such cases from Family Court and gave concurrent jurisdiction to Criminal Court. L 1977, ch 449.

The Legislature granted concurrent jurisdiction to Criminal Court primarily to widen the range of sanctions that could apply in instances of domestic violence between spouses. Governor's Mem. approving L 1977, ch 449 ("I am pleased to sign into law today this bill, designed to afford more effective relief to the battered spouse'."). This Court has come across no apparent indication that the granting of concurrent jurisdiction was intended to criminalize minor children for matters previously within the exclusive jurisdiction of Family Court.

The choice of forum, be it Criminal Court, Family Court, or both, initially belongs to the [*6]complaining parent, and then to the District Attorney's prosecutorial discretion. Though the Court's hands may be tied, our hope is that the People may remember that theirs are not.

The foregoing is the decision and order of the Court.

Dated:July 5, 2006

Brooklyn, New York ___________________

MICHAEL GERSTEIN

J.C.C. Footnotes

Footnote 1:The surnames of Defendants and the Complainant have been deleted for purposes of confidentiality.

Footnote 2:The record is silent as to whether Defendants had bedrooms of their own in the apartment.

Footnote 3:Under NY Fam. Ct. Act § 1012(f), children can only be considered "neglected" by their parents while they are under eighteen years of age. Nonetheless, Defendants' mother remains charged with their support under either standard.

Footnote 4:As alleged in the Complaint.

Footnote 5:In one such case that remains vividly in the Court's memory, the minor defendant was injured and required stitches after punching a window in the family residence, while the uninjured complaining parent was allegedly "alarmed and annoyed".

Footnote 6:National Association of Private Psychiatric Hospitals, Teenagers at Risk: An Adult Perspective at 9 (1988) (72% of adults knew a child who experienced conflict with his or her parents).

Footnote 7:The Court's file for defendant Simmey R.'s prior docket also notes that in 1996, a temporary order of protection was issued ordering Linda P. to stay away from her son, defendant Simmey R. Though that order is no longer in effect, it indicates that the conflict between Defendants and their mother may be more complex than the criminal charges against Defendants appear to indicate. It is significant to note that the Court file on the current dockets did not include this information, which was ascertained only upon this Court's subsequent review of the previous dockets.

Footnote 8:The Family Court has numerous resources to help family members resolve intra-familial disputes. While Criminal Court has programs for matters such as drug addiction, it has none to deal with these types of family issues.

Footnote 9:See People v. Eboli, 34 NY2d 281, 313 NE2d 746, 357 NYS2d 435 (1974); People v. Mauceri, 118 AD2d 735, 736, 500 NYS2d 69, 70 (2d Dept. 1986) ("[T]he choice of statute under which to proceed rests within the discretion of the prosecutor").