Matter of Bobby H.

[*1] Matter of Bobby H. 2009 NY Slip Op 52595(U) [25 Misc 3d 1245(A)] Decided on November 27, 2009 Family Court, Richmond County Bannon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2009
Family Court, Richmond County

In the Matter of Bobby H., A Person Alleged to Be a Juvenile Delinquent, Respondent.



D-4550-09



For the Presentment Agency: Lauren Allerti, Corporation Counsel, 60 Bay Street, Staten Island, NY 10301.

For the Respondent: Joni Brandon, Legal Aid Society, Juvenile Rights Division, 60 Bay Street, 3rd Floor, Staten Island, NY 10301.

Nancy M. Bannon, J.

By the instant juvenile delinquency petition, the respondent is alleged to have committed acts which, if committed by an adult, would constitute the crime of escape in the third degree (Penal Law § 205.05). He moves to dismiss the petition in the furtherance of justice pursuant to Family Ct Act § 315.2.

For the reasons set forth below, the petition is dismissed, but on a different ground.

I. Factual and Procedural Background

In July of 2009, prior to filing the instant petition, the Presentment Agency filed a delinquency petition (docket No. D-03655-09) charging the respondent with acts which, if committed by an adult, would constitute the crimes of menacing in the second degree and criminal possession of a weapon in the fourth degree. The respondent's mother was the complaining witness in that case. Upon arraignment, this court remanded the respondent to non-secure detention facility and he was transported to such a facility, a residence operated by Good Shepherd Services. On September 8, 2009, the respondent was transported by staff of that facility to the Family Court to attend the fact-finding hearing. After the hearing, while sitting in a public Family Court waiting area with a facility staff member awaiting transportation back to the facility, the respondent walked out of the courthouse. He was apprehended the following day by the New York City Police Department and returned to the Family Court. This court remanded the respondent to a secure facility and adjourned the matter to continue the hearing. Thereafter, the Presentment Agency filed the instant petition charging the respondent with escape in the third [*2]degree (Penal Law § 205.05). On October 16, 2009, the respondent filed the instant motion.

In support of his motion, the respondent argues that the facts and circumstances of this case satisfy the statutory criteria for dismissal of the petition (see Family Court Act §315.2) in that, inter alia, the crime charged is not serious in nature, that little or no harm resulted from his conduct, and that he left the courthouse only after being mistreated by a staff member of the non-secure facility. The respondent maintains that, since his remand status was immediately changed by the court from non-secure to secure upon his apprehension, the filing of the instant petition was not necessary to protect the community and served no other useful purpose. The Presentment Agency opposes the motion.

The court does not rule on the merits of the respondent's arguments inasmuch as the petition must be dismissed as facially insufficient.

II. DiscussionA juvenile delinquency petition is insufficient on its face unless it contains non-hearsay factual allegations which, if true, establish every element of the crime(s) charged and provide reasonable cause to believe that the respondent committed them. See Family Court Act § 311.2; Matter of Angel A., 92 NY2d 430 (1998); Matter of Jahron S., 79 NY2d 632 (1992). "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 (1995); see Matter of Rodney J., 83 NY2d 503 (1994). A "stringent test" is applied when determining the facial sufficiency of a juvenile delinquency petition in order "to assure that there is a valid and documented basis for subjecting the respondent to prosecution." Matter of Neftali D., supra at 636. As further explained by the Court of Appeals, "[t]he sufficiency requirements set forth in Family Court Act § 311.2 are not simply technical 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., supra at 634-635. A juvenile delinquency petition which fails to meet these pleading requirements is subject to dismissal.

The instant petition charges the respondent with escape on the third degree. "A person is guilty of escape in the third degree when he escapes from custody." Penal Law § 205.05. [emphasis added]. "Custody" is defined as "restraint by a public servant pursuant to an authorized arrest or an order of the court." [emphasis added]. Penal Law § 205.00(2). Penal Law § 10.00(15) defines a "public servant" as "(a) any police officer or employee of the state or of any political subdivision thereof or any governmental instrumentality within the state, or (b) any person exercising the functions of any such public officer or employee."

Thus, to be facially sufficient, a petition charging this respondent with escape in the third degree, must establish, prima facie, that at the time he left the courthouse he was in "custody, " ie, that he was subject to "restraint" by a "public servant." However, the petition and supporting deposition, by one Davin Paige, allege that the respondent absconded from Paige, who is a youth counselor employed by Good Shepherd Services, as the two were sitting in a waiting area of the Family Court. The petition is devoid of any allegation that the respondent was under any [*3]"restraint" by a "public servant" within the meaning of the Penal Law. [FN1] See Matter of Caitlin "VV", 262 AD2d 696 (3rd Dept. 1999); People v DuPont, 179 Misc 2d 79 (County Ct, Oneida County, 1998); see also Matter of Joe A., 171 Misc 2d 241 (Family Ct, NY County 1996).Therefore, the instant petition must be dismissed since it fails to sufficiently allege that the respondent was in "custody" at the time he left the courthouse, an essential element of the sole count charged.

This conclusion is supported by the recent decision of the Appellate Division, Second Department, in Matter of Dylan C., €" AD3d , 2009 WL 3298255 (2nd Dept. Oct.13, 2009). As in the instant case, the juvenile respondent in Matter of Dylan C. was placed in a non-secure facility upon a finding that continued placement in the home would not be in his best interest since he was beyond parental control. The respondent in Dylan C. absconded from the non-secure facility and was charged with escape in the second degree. See Penal Law § 205.10(1).[FN2]

The Appellate Division affirmed the dismissal of the petition as facially insufficient, holding that a juvenile who absconds from a non-secure facility cannot be prosecuted for the crime of escape in the second degree, since a non-secure facility does not constitute a "detention facility" within the meaning of Penal Law §§ 205.00(1); 205.10(1).

Similarly, neither the statutory nor decisional authority would support a conclusion that a delinquency respondent who absconds from a non-secure facility and who, pursuant to Matter of Dylan C., supra , may not be charged with escape in the second degree, may nonetheless be charged with escape in the third degree. That is, a juvenile who absconds from a non-secure facility cannot be prosecuted for the crime of escape in the third degree where, as here, the respondent is not in "custody" as that term is defined by Penal Law §§ 205.00(2); 205.05.

In ruling as it did in Dylan C., the Second Department relied upon People v Ortega (69 NY2d 763 [1987]) where the Court of Appeals held that a defendant who is committed to the custody of the Commissioner of Mental Health to be placed in a non-secure facility may not be charged with either escape in the second degree or escape in the third degree because "a non-secure facility does not constitute a detention facility within the meaning of Penal Law § 205.00(1)." [emphasis added]. The Second Department reasoned that the Legislature plainly did not intend to include the conduct of absconding from a non-secure facility within the scope either escape in the second degree or escape in the third degree. The Court observed that, following enactment of the relevant statutes, non-secure detention facilities proliferated and have become [*4]increasingly a preferred alternative to secure detention. The Court reasoned that the Legislature could have easily drafted or amended the statutes to include non-secure facilities in the definition of "detention facility" to make specific reference to them in clear terms and concluded that its "failure to do so supports an inference that it did not intent to criminalize absconding from non-secure detention." Matter of Dylan C., supra at 2-3.

The Second Department noted that a non-secure facility is essentially a residential environment where the juvenile "is not being locked up, but rather placed temporarily in an open setting." (Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 320.5, at 25). The Court observed that the primary purpose of a non-secure facility is treatment and rehabilitation while the primary purpose of a secure facility is security and confinement, where residents are locked up and their movements restricted. In light of this distinction, the Court reasoned that a juvenile should not be subjected to penal sanctions for leaving a facility whose primary goal is therapeutic in nature. The Court stated that "it would be inconsistent with the rehabilitative purpose which the juvenile justice system is intended to serve to conclude that the primary purpose of [the respondent's] remand was to confine him to ensure community safety." Matter of Dylan C., supra at 5.

This court is not unaware of the two First Department decisions which arguably take a different view. That Court has held that a juvenile may be charged with escape in the third degree upon escaping from a uniformed police officer after being placed under arrest on a PINS warrant (Matter of Bryan JJ., 175 AD2d 416 [1st Dept. 1991]) or where he or she absconds from a private detention facility (Matter of Bernard T., 250 AD2d 532 [1st Dept. 1998]). However, Matter of Bryan JJ., supra , is readily distinguishable on its facts and, as noted by the Third Department in Matter of Caitlin VV., supra , the First Department's view in Matter of Bernard T., supra , is inconsistent with the Court of Appeals holding in People v Ortega, supra . As previously discussed, the Second Department expressly followed and adopted the reasoning of People v Ortega in its holding in Matter of Dylan C., supra .

As further observed by the Second Department in Dylan C., it is well settled that PINS respondents may not be charged as juvenile delinquents with the crime of escape in the second degree (see Matter of Sylvia H., 78 AD2d 875 [2nd Dept. 1980]) or escape in the third degree (see Matter of Caitlin "VV", supra ) for absconding from a non-secure detention facility. See Matter of Dylan C., supra at 6; see also Matter of Daniel I., 57 AD3d 666 (2nd Dept. 2008) [PINS respondent may not be charged with obstruction of governmental administration in the second degree or criminal mischief in the fourth degree for violating conditions of probation]; Matter of Jasmine A., 284 AD2d 452 (2nd Dept. 2001) [PINS respondent may not be charged as juvenile delinquent for eloping from treatment facility]; Matter of Edwin G., 296 AD2d 7 (1st Dept. 2002) [same]; Matter of Naquan J., 284 AD2d 1 (2nd Dept. 2001) [same].

In similarly declining to impose criminal liability upon delinquency respondents, the Court found no reason to treat the two types of troubled youth differently. The Court noted that, indeed, there is less of a reason to charge a delinquency respondent with escape because, unlike a PINS respondent, a delinquency respondent who absconds from a non-secure setting faces the risk of an additional penalty of having his or her remand status changed to secure. As stated above, that is precisely what occurred in this case. Upon absconding from the non-secure facility, the respondent was placed in a secure facility for the pendency of the proceeding. [*5]

III. Conclusion

Because the instant petition fails to sufficiently allege an essential element of the offense of escape in the third degree (Penal Law § 205.05), it is dismissed as facially insufficient. The prior order of this court, dated October 30, 2009, which dismissed the petition in the furtherance of justice, was erroneously entered and is hereby vacated.

Accordingly, it is

ORDERED that the order of this court dated October 30, 2009, is vacated, and it is further,

ORDERED that the petition is dismissed, with prejudice, for the reasons stated herein, and the record is sealed, and is further,

ORDERED that CAPU shall notify the parties and counsel.

This constitutes the decision and order of the court.

Dated: November 27, 2009

__________________________________________

NANCY BANNON, J.F.C. Footnotes

Footnote 1:In this regard, the Court notes that, in their papers filed in opposition to the respondent's motion to dismiss, the Presentment Agency maintains that the staff member of the non-secure facility was "not law enforcement personnel" and was "not acting at the behest of law enforcement" at the time the respondent absconded.

Footnote 2:"[A] person is guilty of escape in the second degree when he (1) escapes from a detention facility..." Penal Law §205.10(1). "Detention facility" is defined as "any place used for confinement, pursuant to an order of the court, of a person ...(b) charged with being or adjudicated a youthful offender, person in need of supervision or juvenile delinquent, or ... otherwise confined pursuant to an order of a court." Penal Law § 205.00(1).