Matter of Anthony R.

[*1] Matter of Anthony R. 2008 NY Slip Op 52234(U) [21 Misc 3d 1125(A)] [21 Misc 3d 1125(A)] Decided on October 31, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2008
Family Court, Queens County

In the Matter of Anthony R., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-18661/08



Appearances of Counsel: Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of

counsel), New York City, Presentment Agency. The Legal Aid Society, Juvenile Rights

Practice (Tamara A. Steckler and Lisa E. Tuntigian of counsel), Law Guardian for respondent.

John M. Hunt, J.

By petition filed pursuant to Family Court Act §310.1 on July 16, 2008, respondent

AnthonyR., was alleged to have committed acts which, were he an adult, would constitute

the crimes of Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Criminal

Possession of Stolen Property in the Fifth Degree, Menacing in the Third Degree and Unlawful

Imprisonment in the Second Degree.

The initial appearance upon the petition was conducted on July 16, 2008 and respondent

entered a denial to the allegations (Fam. Ct. Act §321.1 [1]). Following a pre-trial Wade hearing

a fact-finding hearing was conducted before this Court on August 12, 2008. The alleged victim,

Aminoor Rashid, and the respondent testified at the hearing.[FN1] According to Mr. Rashid, who is [*2]

15 years old and a 10th grade student, on June 17, 2008 at approximately 9:05 P.M. he was

approached by the a person who was later identified as the respondent, Anthony R., in the

vicinity of 37-38 75th Avenue in Jackson Heights, Queens County. Mr. Rashid testified that this

location is a grocery store and that he exited the store carrying bags of groceries and was

proceeding home when respondent and another male who was wearing beige clothing,

approached him. According to Mr. Rashid, the respondent asked him if he had the time and he

reached into his pocket to remove his "I-Pod Touch" so he could give him the time. At that

point, respondent grabbed Rashid's wrist and tried to take his I-Pod Touch from his hand. Mr.

Rashid managed to get the I-Pod into his pocket and the respondent then tripped Mr. Rashid and

took the I-Pod from his pocket while the other perpetrator stood in close proximity, and both

assailants then ran away. During the incident the groceries which Mr. Rashid had been carrying

"were trampled.." Neither the I-Pod Touch nor its case has ever been recovered.

According to Mr. Rashid, his mother had purchased the I-Pod Touch for his about one

month prior to the incident. Mr. Rashid testified that he was present in the store when the I-Pod

and a case for the device was purchased by his mother for a cost of $350.00.

At the conclusion of the fact-finding hearing the court found that the evidence established

by the requisite quantum of proof that respondent had committed acts which, were he an adult,

would constitute the crimes of Robbery in the Second Degree (P.L. §160.10 [1]), Grand Larceny

in the Fourth Degree (P.L. §155.30 [5]) and Criminal Possession of Stolen Property in the Fifth

Degree (P.L. §165.40). The Court dismissed the count charging respondent with committing the

crime of Menacing in the Third Degree (P.L. §120.15; see, Matter of Davonte B., 44 AD3d 763, [*3]

764 [2007]; Matter of Anisha McG., 27 AD3d 749, 750-751[2006]), and the count charging the

respondent with an act which would constitute the crime of Unlawful Imprisonment in the

Second Degree (P.L. §135.05) was dismissed as merged in robbery count which had been proven

at trial (Matter of Wanji W., 305 AD2d 690, 692 [2003]; Matter of Charles S., 41 AD3d 484, 485 [2007]; People v. Jacobs, 52 AD2d 1182, 1183 [2008]).

The Court scheduled the case for a dispositional hearing and the Department of Probation

was directed to conduct an investigation and prepare a report as to respondent's circumstances

(Fam. Ct. Act §351.1 [2]). The Court further directed that the Presentment Agency obtain a

statement or documentation from the victim or his parents concerning the cost of the I-Pod

Touch and its case. The dispositional hearing was conducted on October 16 and October 21,

2008. At the conclusion of the hearing at which the Court received a report and investigation

from the Department of Probation as well as a victim impact statement,[FN2] the Court entered an

order finding that the respondent was in need of supervision and treatment and he was

adjudicated to be a juvenile delinquent (Fam. Ct. Act §352.1 [1]). The Court thereupon entered

an order of disposition placing the respondent under the supervision of the New York City

Department of Probation for a period of 18 months and directing that the Department assign him

to its Enhanced Supervision Program (Fam. Ct. Act §§352.2 [1] [b], 353.2 [6]), with the specific

conditions that respondent complete 300 hours of community service (Fam. Ct. Act §353.2 [2] [*4]

[f]); that he attend school regularly with no suspensions; that he obey the lawful commands of his

parent; that he obey a 6:00 P.M. curfew until such time as he completes the first 100 hours of

community service; that he commit no further delinquent or criminal acts; and that the Depart-

ment refer him to counseling, including anger management and bereavement counseling (Fam. Ct. Act §353.2 [2]). After placing the respondent on probation and setting the terms thereof, the

Court indicated that it intended to direct that respondent pay restitution to the victim. Although

the trial record contains sufficient evidence upon which to order restitution in the form of the

victim's testimony as to the nature and cost of the stolen property (see, Criminal Procedure Law

§60.27 [2]; People v. Consalvo, 89 NY2d 140,144 [1996]), the Court inquired whether the

parties wished to be heard on the issue of restitution and respondent requested a hearing (see,

People v. Golgoski, 40 AD3d 1138 [2007][failure to request restitution hearing constitutes

waiver]; People v. Giovanni, 53 AD3d 778 [2008]; People v. Rogers, 54 AD3d 1069 [2008]

[same]).

The Court then proceeded to conduct the restitution hearing. The Court took judicial

notice of Rashid's sworn trial testimony as to the purchase price of the I-Pod Touch and case as

he was present when those items were purchased by his mother one month prior to the incident.

In addition, the Court was presented with a victim impact statement by the Department of

Probation in which Mr. Rashid again asserted that the purchase price of the stolen property was

$350.00, as well as sample retail prices for the stolen property from well known consumer

electronics merchants. The website for "Best Buy" which is a consumer electronics merchant,

lists the retail price of three different models of the Apple I-Pod Touch (8 GB, 16GB and 32GB)

as $229.99, $299.99 and $399.99 respectively. That same website lists the cost of a Griffin [*5]

"iClear Polycarbonate Case for Apple iPod touch" as $19.99. The website for "Circuit City"

which is also a consumer electronics merchant, lists the retail prices for the same I-Pod Touch

models as $229.99 , $299.99 and $399.99. Circuit City lists multiple I-Pod Touch cases on its

website, the majority of which are sold at a price of $9.99.

II

The Family Court Act authorizes the court to direct that a respondent pay restitution as

a condition of an order of disposition in a juvenile delinquency proceeding. The relevant section

of the statute, Family Court Act §353.6 reads as follows:

1. At the conclusion of the dispositional hearing in cases involving

respondents over ten years of age the court may:

(a) recommend as a condition of placement, or order as a condition of

probation or conditional discharge, restitution in an amount representing

a fair and reasonable cost to replace the property, repair the damage caused

by the respondent or provide the victim with compensation for unreimbursed

medical expenses, not, however, to exceed one thousand five hundred dollars.

. . . in the case of probation or a conditional discharge, the court may

require that the respondent pay out of his or her own funds or earnings the

amount of replacement, damage or unreimbursed medical expenses, either

in a lump sum or in periodic payments in amounts set by the court;

* * *

3. If the court requires restitution or services for the public good as a

condition of probation or conditional discharge, it shall provide that an

agency or person supervise the restitution or services and that such agency

or person report to the court not less frequently than every six months . . .

"Restitution seeking to ensure that an offender's punishment includes making the victim

whole has been part of New York's criminal justice system since at least 1910. While long

available to crime victims, restitution has become more prevalent over the past quarter-century, [*6]

and courts since 1983 have been required to consider including restitution as part of the sentence

imposed upon a person convicted of an offense" (People v. Tzitzikalakas, 8 NY3d 217, 220

[2007] [internal citations omitted]). Restitution is intended to make the victim whole by directing

payment in an amount necessary to compensate the victim for pecuniary losses caused by the

defendant's criminal conduct (People v. Consalvo at 144; People v. Tzitzikalakas at 220; People

v. Ayers, 45 AD3d 1290, 1290-1291 [2007], lv. denied 10 NY3d 808 [2008]). In other words,

"[r]estitution is not meant to penalize the defendant; that function is served by incarceration,

fines or probation. Restitution therefore should not compensate victims for more than their actual

loss" (Town of Gilbert Prosecutor's Office v. Downie, 218 Ariz. 466, 189 P.3d 393, 396 [Sup.

Ct. 2008]).

A

"The overriding intent of the juvenile delinquency statute is to empower Family Court to

intervene and positively impact the lives of troubled young people while protecting the public"

(Matter of Robert J., 2 NY3d 339, 346 [2004]; see, Matter of Jose R., 83 NY3d 388, 394-395

[1994]; Matter of Benjamin L., 92 NY2d 660, 670 [1999]).While an adjudication of juvenile

delinquency does not constitute a conviction for a crime (Fam. Ct. Act §380.1 [1]; Green v.

Montgomery, 95 NY2d 693, 697-698 [2001]), New York and other jurisdictions have provided

juvenile and family courts with authority to impose restitution in juvenile delinquency

proceedings (see, Fam. Ct. Act §§353.6, 353.2 [2] [f]; Matter of James A., 205 AD2d 621,

621-623 [1994]; Matter of Antonio M., 214 AD2d 571 [1995]; Matter of Frank M., 219 AD2d

877 [1995]; Matter of Joel M., 240 AD2d 747 [1997]; Matter of Juan O., 240 AD2d 749 [1997];

Matter of Andrew D., 231 AD2d 953 [1996]; Matter of Rashid F., 300 AD2d 960, 962 [2002]; In [*7]

re Daytrill H., 32 AD3d 953 [2006], lv. denied 8 NY3d 803 [2007]; Matter of Jonathan D., ___

AD3d ___, 2008 NY Slip Op 08124; In re Jaime P., 223 Ill. 2d 526, 531, 861 N.E.2d 958, 961,

308 Ill.Dec. 393, 396 [Sup. Ct. 2006]; In re Anthony M., 156 Cal. App. 4th 1010, 1016-1017, 67

Cal.Rptr.3d 734, 737-738 [Ct. App. 2007]; In re Michelle G., 217 Ariz. 340, 343,173 P.2d 1041, 1044 [Ct. App. 2008]; W.S. v. State of Alaska, 174 P.2d 256, 258-259 [Ct. App. 2008]).[FN3]

B

"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" (People v. Miller, 87

NY2d 211, 214 [1995]). In this case, the Court has found that the respondent committed an act

which would constitute Robbery in the Second Degree (P.L. §160.10) against Aminoor Rashid,

in that respondent, while aided by another person who was actually present, forcibly stole the

victim's I-Pod Touch device and its case (P.L. 160.10 [2]). Respondent was also found to have

committed two property offenses related to the robbery.

At a restitution hearing, the prosecution has "the burden of proving the amount of loss by

a fair preponderance of the evidence. Any relevant evidence is admissible unless privileged

regardless of its admissibility under the rules of evidence" (People v. Consalvo at 145; People v.

Tzitzikalakis at 221; People v. Russell, 41 AD3d 1094, 1096 [2007], lv. denied 10 NY3d 964

[2008]; People v. Howell, 46 AD3d 1464, 1465 [2007], lv. denied 10 NY3d 841 [2008]).The [*8]

evidence adduced at the restitution hearing, consisting of the victim's trial testimony, the victim

impact statement prepared by the Department of Probation and the sample retail prices for the

I-Pod Touch device and its case, establish by a fair preponderance of the evidence that the I-Pod

Touch and case forcibly taken from the victim's person by the respondent was purchased a month

prior to the incident for a cost of $350.00. Respondent has not introduced any evidence which

would rebut that determination.

Pursuant to Family Court Act §353.6 (1) (a) the maximum amount of restitution which

may be ordered in a juvenile delinquency proceeding is $1,500.00. While the value I-Pod Touch

and case taken from Mr. Rashid has been established to be $350.00, and the intent of the statute

is to reimburse the victim for his economic loss, the Court must also consider whether the

respondent and the adults legally responsible for his care and support (Fam. Ct. Act §§413, 416)

have the financial ability to pay that amount (Matter of Jessie GG., 190 AD2d 916 [1993]; Matter

of Jonathan D., 33 AD3d 996, 998 [2006], aff'd after remand ___ AD3d at ___, 2008 NY Slip

Op 08124 at *1, supra). Respondent was provided an opportunity to present any evidence he

wished, but no information concerning his financial circumstances or that of his family was

submitted. Respondent's Law Guardian merely observed that restitution in the amount of

$350.00 would be financially burdensome.

Accordingly, based upon the evidence adduced at the restitution hearing, the Court orders

that as a condition of the order placing respondent on probation, he is to pay restitution in the

amount of $350.00 to Aminoor Rashid no later than December 1, 2008 through the Safe Horizon

agency (Fam. Ct. Act §353.6 [3]). Should respondent be unable to make the required payment

within the time period directed, he may move for modification of the conditions of probation [*9]

(Fam. Ct. Act §355.1).

This constitutes the decision and order of the Court.

E N T E R:

__________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

October 31, 2008 Footnotes

Footnote 1:The factual recitation herein is summary in form and it is applicable only to the Court's decision on the issue of restitution. It is does not constitute any part of the Court's decision upon fact-finding nor does it necessarily represent all of the evidence upon which the fact-finding order required by Family Court Act §345.1 (1) was based.

Footnote 2:Family Court Act §351.1 (4) provides insofar as relevant that: "[w]hen it appears that such information would be relevant to the findings of the court or the order of disposition, each investigation report prepared pursuant to this section shall contain a victim impact statement which shall include an analysis of the victim's version of the offense, the extent of the injury or economic loss or damage to the victim, including the amount of unreimbursed medical expenses, if any, and the views of the victim relating to disposition including the amount of restitution sought by the victim."

Footnote 3:Indeed, in some jurisdictions an award of restitution is mandatory upon a finding of juvenile delinquency which resulted in economic loss to a victim (e.g., In re Anthony M. 156 Cal. App. 4th at 1015, 67 Cal. Rptr. 3d at 737; In re Michelle G. 217 Ariz. at 343, 173 P.3d at

1044; W.S. v. Alaska 174 P.2d at 259).