[*1] Matter of Edwin R. 2011 NY Slip Op 50676(U) Decided on April 15, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.
Matter of Edwin R.
Decided on April 15, 2011
Family Court, Queens County
In the Matter of a Miscellaneous Application Concerning Edwin R.
John M. Hunt, J.
The New York City Department of Probation has submitted an application pursuant to
Family Court Act §308.1 (9) and 22 NYCRR §205.22 (d) (4) for leave of court to continue its
adjustment efforts with respect to Edwin R. for an additional two month period. No juvenile
delinquency petition and no application authorizing detention prior to the filing of a juvenile
delinquency petition has been filed against Mr. R., and the Court does not have personal
jurisdiction over the youth at this time (see, Matter of Markim Q., 7 NY3d 405, 411 [the juvenile
delinquency petition is the jurisdiction-creating document under article 3]).
According to the documentation submitted along with the Department's application,
Mr. R., who was born on April 14, 1995, was arrested in on February 10, 2011 for the
commission of an act which would constitute the crime of Criminal Possession of a Weapon in
the Fourth Degree (P.L. §265.01). The arrest report prepared by the New York City Police
Department indicates that a police officer observed Mr. R. to be in possession of a switchblade
knife at the southwest corner of Linden Place and 35th Avenue in Queens County at 11:05 A.M.
Mr. R. was arrested and the switchblade knife was recovered incident to that arrest. Mr. R. was
released to the custody of his mother by police officers upon the issuance of a Family Court
appearance ticket which directed that he appear at the offices of the Department of Probation [*2]
located at the Queens County Family Court building on February 15, 2009 at 9:00 A.M. (Fam. Ct. Act §307.1 ).
Mr. R. and Manny R., who is apparently his older brother, appeared at the offices of
the Department of Probation on February 15, 2011 for intake. Information was provided to a
Probation Officer along with a release for the Department of Education to release school records
to Probation. According to the information sheet on file, Mr. R. indicated that he is enrolled in
the 9th grade at Flushing High School and he also indicated that he had been previously arrested.
Mr. R. was then directed to return to the office on February 22, 2011.
On February 22, 2011 Mr. R. appeared at probation with his mother and his brother. A
parental consent for the release of Department of Education records was signed by the mother on
that day and an intake report was then completed by a Probation Officer. According to that
report, the Probation Officer spoke with the arresting Police Officer who indicated that the
juvenile "was seen with another person behind some buildings. When he approached them they
had finished "smoking" but was in possession of the lighter/switchblade. He states that he is the
youth officer and knows the [youth] well. He is often truant and high off marijuana. He believes
the [youth] would benefit from drug testing and counseling." The Police Officer also indicated
that he was in agreement with the Department of Probation's plan to offer the juvenile
The records of the Department of Education which were accessed by the Probation
Officer reflected that Mr. R. attended school 74% of the scheduled days in Spring 2010, but that
he has "54 absences since September 2010". In addition, the records indicate that Mr. R. "was
suspended on June 19, 2009 for starting a fire", suspended on February 25, 2009 "for taking [*3]
property", suspended on November 10, 2008 for "graffiti", and suspended on June 11, 2008 "for horseplay." The report of Mr. R.'s school grades reflected that he failed 9 of10 classes in which
he had been enrolled at Flushing High School and that he has accumulated only 1 credit towards
Mr. R. signed an "agreement to cooperate with adjustment services" on February 22,
2011 in which he agreed to attend school regularly, attend all classes, and obey school rules.
He also agreed to complete an essay on a topic selected by the Department of Probation, to
cooperate with the Probation Officer, to commit no further illegal acts, to keep all appointments
with the Probation Officer, to obey the lawful commands of his parent and guardians, to obey a
curfew , and to participate in a marijuana abuse program (the "THC Group") at Daytop, a drug
treatment program located in Queens County.
Mr. R. returned to the Department of Probation offices on March 2, 2011 along with his
mother. As of that date, Mr. R. had attended the marijuana program at Daytop on February 23,
2011 and he was next scheduled to attend on March 2, 2011. Mr. R.'s mother informed the
Probation Officer that she had a forthcoming meeting with her son's Guidance Counselor to
address school issues, especially her son's failure to attend school. The Probation Officer then
confirmed that Mr. R. attended th THC Group program at Daytop on March 11, 2011 and that he
was next scheduled to attend on March 16, 2011.
The Probation records reflect that Mr. R. was asked to submit to a urinalysis examination
by Daytop on March 23, 2011 but that he "stalled" and he told the program staff that he "had
smoked" on March 18, 2011. Mr. R. appeared at the Department of Probation on March 30, 2011
and the Probation Officer informed him that "because he refused to be drug tested, he would no [*4]
longer be a part of the THC Group" at Daytop. The Probation Officer informed Mr. R.'s mother of the situation on April 1, 2011, and the mother agreed to appear at Probation with her son on
April 13, 2011.
Mr. R. and his mother appeared at the Department of Probation on March 13, 2011 and
the Probation Officer administered an oral drug test to Mr. R.. The results of the test were
positive for marijuana. The Probation Officer made a new appointment for Mr. R. to attend
Daytop that day, and the Probation Officer directed that Mr. R. return to the Department of
Education on April 20, 2011. The records of the Department of Education indicated that Mr. R.
missed school on the following days since he first appeared at the Department of Probation on
February 15, 2011: February 16, 17, 18, and 28, March 1, 2, 3, 11,17, 18, 23, 24, April 4, 5, 7, 8,
11 and 12, 2011.
Family Court Act §308.1 provides for the adjustment of "suitable cases" prior to the
institution of formal judicial proceedings against a person who may be a juvenile delinquent
within the meaning of Family Court Act §301.2 (1). Adjustment services under Family Court
Act §308.1 is "the informal consensual resolution of a case under probation service auspices"
(Matter of Aaron J., 80 NY2d 402, 406 [citation omitted]). Adjustment is a "nonadversarial
dispute resolution mechanism [which] can be highly beneficial to an accused juvenile because,
if successful, it enables the juvenile to avoid the potentially harsher consequences of a formal
fact-finding hearing and judicially imposed disposition" (id.). "The centerpiece of the legislation
authorizing adjustment services is Family Court Act §308.1, which provides a detailed
description of the procedures to be followed and establishes the time limits that must be obeyed.
Under subdivision (9) of that statute, efforts at adjustment . . . may not extend for a period of [*5]
more than two months without leave of the court, which may extend the period for an additional
two months" (id.).
Where the Department of Probation seeks to extend its provision of adjustment services
beyond the initial two month period, the applicable court rules require that the Department
submit a "written application to the court" for approval (22 NYCRR §§205.22 [d] ; 205.23
[b]). The application must "set forth the services rendered to the potential respondent, the date of
commencement of those services, the degree of success achieved, the services proposed to be
rendered and a statement by the assigned probation officer that, in the judgment of such person,
the matter will not be successfully adjusted unless an extension is granted" (22 NYCRR §205.23
The Court has considered the adjustment efforts which have been undertaken by the
Department of Probation, the nature of the criminal conduct which resulted in the juvenile's
arrest, the juvenile's school attendance or lack thereof, his academic performance, his adherence
to school rules, and the fact that the juvenile is apparently abusing marijuana. While the Depart-
ment of Probation has made efforts to enroll Mr. R. in a substance abuse program and he has
apparently attended on a sporadic basis, the program has yet to have had any success in curbing
his abuse of marijuana. While the alleged criminal act did not result in any injury to other persons
or result in the destruction of property, it appears to be part of a larger pattern of maladaptive
behavior which includes a failure to attend school, a failure to pass classes, a failure to adhere to
school rules, and the continuing abuse of marijuana.
At this juncture, the Department of Probation has undertaken appropriate measures to
address the problems facing Mr. R. However, he continues to test positively for marijuana use [*6]
and there has been little progress in addressing his academic shortcomings and his failure to
attend school regularly. Although the Court routinely approves requests to continue adjustment
services because adjustment "often entail[s] such time-consuming ameliorative measures as
multiple counseling sessions, psychological evaluations and referrals to community service
agencies" (Aaron J. at 407), there is little indication in this case that such efforts will prove
successful without the authority of the Court to compel the participation and compliance of Mr.
R.. However, the Court has no authority over the juvenile at this time and he cannot be
compelled to comply with the services being offered by the Department of Probation.[FN1]
Under these circumstances, and considering that Mr. R. will be 16 years old on April 14,
2011 and subject to criminal prosecution for further violations of law, the Court declines to
extend the period of adjustment and the Department of Probation shall proceed in accordance
with Family Court Act §308.1 (10) and 22 NYCRR §205.22 (d) (4).
This constitutes the decision of the Court. A copy shall be provided to the Department of
Probation and to the Presentment Agency.
E N T E R:
John M. Hunt
Judge of the Family Court
Dated:April 15, 2011
Jamaica, New York Footnotes
Footnote 1:In the event that a juvenile delinquency petition is filed the Court may refer Mr. R. to probation for additional adjustment services at the conclusion of the initial appearance (Fam. Ct. Act §320.6 ; Aaron J. at 407; Matter of Deborah C., 261 AD2d 138; Matter of Adam T., 287 AD2d 833, 834). Should the case thereafter be successfully adjusted it will be dismissed by the Court in accordance with Family Court Act §320.6 (3) (Matter of Adam T. at 834).