Matter of Amber F.

[*1] Matter of Amber F. 2009 NY Slip Op 50531(U) [23 Misc 3d 1101(A)] Decided on March 30, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2009
Family Court, Queens County

In the Matter of Amber F., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-1488/08



Michael A. Cardozo, Corporation Counsel (Vanessa M. Facio-Lince of counsel), New York City, for Presentment Agency. The Legal Aid Society (Tamara A. Steckler and Lisa E. Tuntigian), New York City, for respondent.

John M. Hunt, J.

By motion filed pursuant to Family Court Act §355.1, respondent has moved for an order

vacating the orders of fact-finding and disposition entered in this juvenile delinquency petition.

The charges in the juvenile delinquency petition arose from an incident which occurred

on January 7, 2008 in which it was alleged that the respondent and two accomplices engaged in

an unprovoked assault upon another young lady resulting in physical injury which included

bleeding in and swelling to one of her eyes. During the course of the incident, one of the other

two perpetrators stole the victim's sweater.

On April 3, 2008 respondent entered an admission to having committed an act which

would constitute the crime of Assault in the Third Degree as charged in the petition (Fam. Ct. [*2]

Act §§321.2 [3], 321.3 ),[FN1] and a dispositional hearing was scheduled (Fam. Ct. Act §321.3 [3]).

The Department of Probation was directed to conduct an investigation into respondent's

circumstances and to submit a report to the Court (Fam. Ct. Act §351.1 [2]).

The dispositional hearing was conducted on May 13, 2008 and at the conclusion of the

hearing, the Court determined that respondent required supervision and treatment. Accordingly,

respondent was adjudicated to be a juvenile delinquent pursuant to Family Court Act §352.1 (1)

and the Court directed that she be placed under the supervision of the Department of Probation

for a period of 12 months (Fam. Ct. Act §§352.2 [1] [b], 353.2), upon conditions imposed by the

Court which included that respondent complete 200 hours of community service, that she commit

no further criminal or delinquent acts, that she obey her grandmother's lawful commands, that

she attend school regularly and obey all school rules, and that she have no contact with the victim

or her accomplices during the period of probation. The Court's order also provided that the

respondent could move to reopen the hearing upon proof of her compliance with the conditions

of probation for a minimum of 9 months and proof of her promotion to the next school grade.

In support of her motion to set aside the May 13, 2008 order of disposition and the

underlying fact-finding order, respondent's Law Guardian contends that respondent has, inter

alia, been promoted to the 11th grade, is passing all of her classes, has completed over 200 hours

of community service, has not been arrested again, has complied with her grandmother's rules,

and has otherwise complied with all directives of her Probation Officer. In response, the [*3]

Presentment Agency states that it has been advised by the Probation Officer assigned to supervise

the respondent that she has met all conditions of her probation, and there is no dispute as to the

factual assertions made in support of the motion.

Family Court Act §355.1 is a codification of the court's inherent authority to modify or

vacate its prior orders in a juvenile delinquency proceeding (Matter of Delfin A., 123 AD2d 318,

320 [1986]), and the statute "reflect[s] the court's continuing jurisdiction and interest in a juvenile delinquency proceeding" (Besharov and Sobie, Practice Commentaries, McKinney's

Cons Laws of NY, Book 29A, Family Court Act §355.1 at 496 [West 1998]). "Accordingly,

pursuant to the statute, upon a motion by or on behalf of the respondent, or upon the court's own

motion, a new fact-finding or dispositional hearing may be granted, and any prior order may be

stayed, modified, terminated or vacated upon a showing of a substantial change of circum-

stances" (Matter of Gerry B., 15 Misc 3d 1134[A], 2007 NY Slip Op 50979[U] at 5; see, Matter

of Eugene S., 200 AD2d 574, 575 [1994]; Matter of Chaz H., 298 AD2d 983, 984 [2002]; Matter

of Barry H., 309 AD2d 1147 [2003], lv. denied 1 NY3d 503 [2003]; Matter of Eric S.D., 37

AD3d 1045, 1046 [2007]; Matter of Jonathan C., 51 AD3d 559 [2008]; Matter of Gary B., 12

Misc 3d 1151[A], 2006 NY Slip Op 50852[U]).

Because the needs and circumstances of a particular juvenile delinquent may be unique,

there is no statutory definition of what constitutes a "substantial change of circumstances" for

purposes of Family Court Act §355.1. While every asserted change of circumstances will not be

substantial, a review of the cases reflects that this is a fact-specific determination which must be

made by the Court (see., Matter of Zachary T.D., 26 AD3d 801, 802 [2006]; Matter of Barry H.

at 1147; Matter of Jacqueline T., 182 AD2d 547 [1992]; Matter of Chaz H. at 984; Matter of Eric [*4]

S.D. at 1046; Matter of Jonathan C. at 559).

In this case, the uncontested allegations of respondent's compliance with all of the terms

of the order placing her under the supervision of the Department of Probation, as supported by

the documents submitted upon the motion, establishes a substantial change of circumstances in

that there is no need for continued probation supervision of the respondent at the present time

It has been observed that the rehabilitation and treatment of juvenile delinquents is the

goal of the juvenile justice system (Matter of Quinton A., 49 NY2d 328, 334-335 [1980]; Matter

of Carmelo E., 57 NY2d 431, 435 [1982]; Green v. Montgomery, 95 NY2d 693, 697-698 [2001];

Sebastian v. State of New York, 250 AD2d 260, 262 [1998], aff'd 93 NY2d 790 [1999]), and

that "[t]he 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]).

In the criminal justice system, "[t]he overriding purpose of imposing a sentence of

probation in lieu of other punishment is to rehabilitate the convicted criminal by giving him

appropriate treatment, in order to . . . return him to society so reformed that he will not desire or

need to commit further crimes"(People v. Letterlough, 86 NY2d 259, 264 [2006] [internal

citation omitted]; see, People v. Hale, 93 NY2d 454, 461-462 [1999]; People v. Swenson, 12

AD3d 948 [2004]). Thus, "[a] probationary sentence is a method of offering an offender an

opportunity to rehabilitate himself, without institutional confinement, under the supervision of a

probation officer and the continuing power of the court to use a more stringent sanction in the

event the opportunity is abused" (People v. Letterlough at 264). [*5]

Although there are clear differences between criminal actions and juvenile delinquency

proceedings (Matter of Jose R., 83 NY2d 388, 394 [1994]), the imposition of a period of

probation supervision serves the same purpose: the rehabilitation of the offender through the

provision of needed treatment and services (e.g., Matter of Brandon W., 28 AD3d 783, 785

[2006], lv. denied 7 NY3d 707 [2006]; Matter of Ashley D., 55 AD3d 605, 606 [2008]; Matter

of Rufino M., 165 AD2d 385, 386 [1990]).

The Court has considered the violent nature of the underlying incident which brought the

respondent before the Court as a juvenile delinquent, as well as the fact that the victim suffered

physical injury and emotional trauma as a result of the actions of the respondent and her two

accomplices. The Court has also considered that this incident was the respondent's first and only

contact with the juvenile justice system, although that fact standing alone does not compel any

particular dispositional outcome,[FN2] and that respondent admitted her involvement in the incident

and expressed remorse and a willingness to accept responsibility for her actions. Since being

placed under probation supervision, respondent has continued to attend school regularly and her

academic performance continues to be above average, respondent presents no problems in her

home and there have been no reported violations of the conditions of probation. The Court has

also taken into account that respondent is now over 16 years of age and any future violations of

law would subject her to potential criminal prosecution, and that respondent, who expresses [*6]

interest in pursuing a medical education, has been volunteering at Mary Immaculate Hospital in

Jamaica for 3 days a week for a lengthy period of time which commenced before she was placed

on probation. In that regard, respondent has performed over 200 hours of volunteer service at the

hospital between January and September of 2008.

Upon balancing the pertinent considerations, the Court concludes that the primary goal of

this proceeding, the rehabilitation of the respondent, has been achieved.

A juvenile delinquency adjudication does not constitute a criminal conviction (Fam. Ct.

Act §380.1 [1]; Green v. Montgomery at 697-698; Matter of Roseangela C., 232 AD2d 633,

634 [1996]), yet it may have a stigmatizing effect upon the respondent in the future (Matter of

Deborah C., 261 AD2d 138, 139 [1999]; Matter of Joel J., 33 AD3d 344, 345 [2006]).[FN3] While the

evidence adduced at the dispositional hearing did not establish that there were then compelling

circumstances warranting an outcome not involving an adjudication of juvenile delinquency

(Matter of Khaled S., 283 AD2d 197 [2001]), respondent's current circumstances clearly

establish that no purpose would be served by maintaining her status as an adjudicated juvenile

delinquent.[FN4] [*7]

The same factors which led the Court to conclude that there has been a substantial change

of circumstances warranting relief pursuant to Family Court Act §355.1, lead to the conclusion

that this proceeding should now be adjourned in contemplation of dismissal pursuant to Family

Court Act §315.3.[FN5] However, because Family Court Act §315.3 (1) specifies that an adjournment

in contemplation of dismissal must be granted prior to the entry of an order of adjudication (Fam.

Ct. Act §352.1 [1]; see, Matter of Edwin L., 88 NY2d 593, 600 [1996]; Matter of Janay P., 11

AD3d 697 [2004]; Matter of Melissa VV., 26 AD3d 682, 683 [2006]), the Court is required to

vacate the May 13, 2008 dispositional order (Matter of Israel M., 57 AD3d 274, 276 [2008])

which also contains the Court's adjudication of juvenile delinquency.[FN6]

Accordingly, respondent's motion for relief pursuant to Family Court Act §355.1 is

granted and the order of disposition dated May 13, 2008 is hereby vacated, and the juvenile

delinquency petition filed on February 6, 2008 is adjourned in contemplation of dismissal

pursuant to Family Court Act §315.3 for a period which shall expire on May 13, 2009 upon the

following conditions: (i) respondent to attend school regularly with no unexcused absences and

no suspensions; (ii) respondent shall obey the lawful commands of her grandmother; (iii) [*8]

respondent shall commit no further criminal offenses; (iv) respondent to have no contact with the

victim; (v) respondent to have no contact with her co-respondents except for supervised school

activities.[FN7]

This constitutes the decision and order of the Court.

A copy of this order shall be expeditiously furnished to the respondent and her grand-

mother by the Law Guardian's office, which shall file an affirmation or affidavit of service

with the Clerk of Court. (22 NYCRR §205.24 [c]). The Clerk shall provide counsel and the

Department of Probation with a copy of this order.

ENTER:

_________________________________

John M. Hunt

Judge of the Family Court

Dated: Jamaica, New York

March 30, 2009 Footnotes

Footnote 1:Upon the acceptance of respondent's admission to the count of the petition charging Assault in the Third Degree, the remaining counts of the petition were dismissed (Fam. Ct. Act

§321.2 [3] [where petition contains multiple counts, an admission to part of the petition or a

lesser included crime "constitutes a complete disposition" of these allegations]).

Footnote 2:At the dispositional hearing the Court considered the recommendation of the Department of Probation that respondent be granted an adjournment in contemplation of dismissal. Although Probation's recommendation is not binding, it was considered by the Court in fashioning its order of disposition (e.g., Matter of Erika R., 55 AD3d 740 [2008]; Matter of Jasen P.M., 289 AD2d 1033 [2001]). Notably, the Court's order of disposition granted respondent the right to seek the relief she is now requesting.

Footnote 3:One commentator has observed that with respect to juvenile delinquents, stigmatization may result in public ridicule, shame, humiliation, loss of standing in the community, negative impact upon the child's relationships with adults and other children, all of which may encourage further delinquent behavior by the offender (K. Henning, Eroding Confidentiality in

Delinquency Proceedings: Should Schools and Public Housing Authorities be Notified?, 79 N.Y.U L. Rev. 520, 527-528 [2004]).

Footnote 4:A juvenile delinquency adjudication may also have unforeseen collateral consequences for the respondent. One such example is that "another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1" (Fam.

Ct. Act §381.2 [2]; see, Green v. Montgomery at 697; United States v. Daniels, 929 F.2d 128,

129-130 [4th Cir. 1991], cert. denied 502 US 870 [1991] [District Court could consider defendant's New York delinquency adjudications in determining federal criminal sentence]).

Footnote 5:At the conclusion of the period of adjournment, the petition will be deemed to have been

dismissed in furtherance of justice and the record will be sealed pursuant to statute (Fam. Ct. Act

§§315.3 [1], 375.1 [2] [c]).

Footnote 6:A juvenile delinquency adjudication actually consists of three separate findings which

are usually contained in two orders: an order of fact-finding (Fam. Ct. Act §345.1), an order determining that the respondent requires supervision, treatment of confinement (Fam. Ct. Act §351.2 [1]), and finally an order of disposition (Fam. Ct. Act §352.2) (e.g., Matter of Melissa VV. at 683; Matter of Jesse L., 37 AD3d 998, 999 [2007]). The court's adjudication and its order of disposition are generally combined in a single written order.

Footnote 7:Family Court Act §355.1 (3) provides that "[i]f the court issues a new order of disposition under this section the date such order expires shall not be later than the expiration date of the original order" (see, Matter of Jennifer B., 256 AD2d 1195, 1196-1197 [1998]; Matter of Lorenzo A., 59 AD3d 441 [2009]). However, an adjournment in contemplation of dismissal does not constitute an order of disposition as defined by Family Court Act §352.2 (1) (Matter of Edwin L. at 600), and where the Court acts pursuant to Family Court Act §355.1 and grants an adjournment in contemplation of dismissal in lieu of a previously imposed disposition, the Court is not issuing a new order of disposition. Under such circumstances, Family Court Act §355.1 (3) would not appear to prohibit the Court from imposing the full six month period of adjournment

which is authorized by Family Court Act §315.3 (1). In this case, the Court has concluded that it is not necessary to order a period of adjournment longer than the period of probation it initially imposed.