Matter of Andrew L.

[*1] Matter of Andrew L. 2012 NY Slip Op 50362(U) Decided on March 1, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2012
Family Court, Queens County

In the Matter of Andrew L., A Person Alleged to be a Juvenile Delinquent, Respondent.



D-21217/10



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

New York City, for Presentment Agency. Peter E. Tommaso, Kew Gardens,

attorney for respondent.

John M. Hunt, J.

Respondent, Andrew L., who was adjudicated to be a juvenile delinquent by order dated

March 11, 2011, has moved for an order pursuant to Family Court Act §355.1 vacating the

adjudication of juvenile delinquency and the order of disposition entered on November 30, 2010,

and for the entry of an order adjourning this proceeding in contemplation of dismissal pursuant to

Family Court Act §315.3. Alternatively, respondent has moved for an order to seal the record of

the juvenile delinquency proceeding pursuant to Family Court Act §372.2 .

By petition filed pursuant to Family Court Act §310.1 (1) on October 6, 2010, Andrew

L. was alleged to have committed acts which, were he an adult, would have constituted the crime

of Criminal Sexual Act in the Third Degree (Penal Law §130.40 [3]).[FN1] On November 30, 2010

the petition was amended upon consent of the parties to add a second count, charging respondent [*2]

with committing an act which would constitute the crime of Sexual Misconduct (Penal Law

§130.20 [2]). The factual portion of the juvenile delinquency alleged that on Sunday, October 3,

2010 at 12:15 A.M. inside of the residence of respondent's family in Bellerose, New York, the

then 15-year-old respondent forced the victim, his then 14-year-old neighbor, to perform oral sex upon him.

Following preliminary proceedings upon the petition, on November 30, 2010 respondent

entered an admission to having committed an act which would have constituted the crime of

Sexual Misconduct in full satisfaction of the petition (Fam. Ct. Act §321.2 [3]). Following a

dispositional hearing, respondent was adjudicated to be a juvenile delinquent (Fam. Ct. Act

§352.1 [1]),[FN2] and he was granted a Conditional Discharge for a period of twelve months,

conditioned upon his participation in a counseling program to which he would be referred by the

Department of Probation, his regular attendance at school, the commission of no further criminal

or delinquent acts, and his compliance with the lawful commands of his parents (Fam. Ct. Act

§§352.2 [1] [a]; 353.1).

A

In support of the motion, the attorney for the respondent states that respondent "has

successfully completed his junior year of school and is now a senior (report card attached

hereto). He has obeyed all the requests of probation, and he has been examined by a counselor

(report attached hereto). Andrew is working as a lifeguard this summer, [he] obeys his curfew,

and his parents have informed me that they have had no problems with Andrew." Respondent's [*3]

report card from his high school for the 4th quarter of the 2010-2011 academic year indicates that

he passed all of his courses for the year, and that he was late only two times and absent a total of

5 days for the entire school year.

Appended to the motion is an affidavit from respondent's father attesting to Andrew's

continued good behavior at home and at school, and the Court has also been provided with a

letter from Andrew's high school Guidance Counselor indicating that he has been respondent's

counselor for the past four years, and that he "has worked hard to become a positive member of

the [school] community." The Guidance Counselor further writes that respondent has progressed

academically, that his teachers indicate that his behavior and participation in his classes is

"positive", and that respondent has been selected to be a Peer Counselor which will require him

to act as an informal mentor for freshman entering the school.

Respondent has also submitted two reports from the therapist who counseled him. The

therapist, a Licensed Clinical Social Worker (LCSW) and Certified Alcohol and Substance

Abuse Counselor (CASAC), reports that "[i]t is my opinion that Andrew is not in need of

psychotherapy. He freely spoke of the incident which led to his arrest and sentencing. He reports

no symptoms of anxiety or depression. The consequences of his actions in with the 14 year old

girl have caused him to see the seriousness of acting out in a sexual manner."

In a second and more formal report the social worker indicates that he had a follow-up

counseling session with respondent on September 29, 2011 and that he had a telephone

conversation with the Dean at respondent's high school. According to the report, when the

social worker met with the respondent on September 29, 2011, respondent "stated some [*4]

of the girl's allegations were false" and that "[w]hen questioned about his responsibility he

acknowledged he was trying to persuade the girl to perform oral sex, although he states he did

not force her to perform oral sex." However, Andrew acknowledged that "it was wrong"to

"influence a girl to perform a sexual act which she showed reluctance to engage in", and he

understood that persons less than 17 years old were incapable of consenting to engage in sexual

activity.

In addition, the social worker observed that the respondent "does not show the

defensiveness of an adolescent who denies the seriousness of their actions. In discussing his

behavior with past encounters with girls he does not show symptoms of sexual compulsivity or

anti-social behavior associated with sex offenders." The report states that the respondent is "goal

oriented" and was applying to colleges, and that he has a girlfriend, that they have had "a few

break-ups" but that he "is happy with the relationship." The Dean at respondent's high school

indicated that Andrew was performing well at school and that he presented no behavioral

problems. Andrew reported continued good relations with his parents and brothers, and he stated

that the incident had become "a public matter" in the community. In closing, the social worker

stated that Andrew's "behavior and attitude have changed for the better" and that Andrew "is not

in need of psychotherapy at this time."

Two affirmations were submitted by the Presentment Agency in opposition to the motion.

In the first, the Assistant Corporation Counsel indicates that she spoke with the mother of the

victim who had discussed respondent's application with both the victim and her father.

According to the Assistant Corporation Counsel, "[t]he complainant's mother indicated to the

Presentment Agency that her family opposes the respondent's application to grant the respondent [*5]

an ACD. At the initial disposition, the family did not believe that a CD was appropriate, and

therefore, does not believe that the least restrictive dispositional alternative is appropriate

either."[FN3]

In the second affirmation, the Presentment Agency refers the Court to a letter written by

the victim on September 5, 2011. The letter reads, in pertinent part, that she is opposed to sealing

of the court record because "it would be like me having the courage to come forward would be

for nothing. If he does something horrible like this again to some other innocent girl it would be

like he never was arrested before." The victim further states that she suffered psychological

trauma as a result of the incident, and in her opinion the respondent, more or less, "got off easy"

in this case. The victim notes that she continues to suffer because she and the respondent reside

in the same neighborhood and she sees him on an irregular basis. The Court has also reviewed

once again the victim impact statement which was obtained by Safe Horizon and submitted at

the dispositional hearing (see, Fam. Ct. Act §351.1 [4]).

B

Related to a court's inherent power over its own orders and judgments (Matter of Delfin

A., 123 AD2d 318, 320; Bellevue-Santiago v. City Ready Mix, Inc., 270 AD2d 441; Quinn v.

Guerra, 26 AD3d 872, 873, app dismissed 7 NY3d 741; Matter of Aaron H., 72 AD3d 1602,

1603, lv denied 15 NY3d 704), Family Court Act §355.1 specifically authorizes the Court, upon

a showing of "a substantial change of circumstances", to grant a new fact-finding or dispositional [*6]

hearing, or to "stay execution of, set aside, modify, terminate or vacate any order issued in the

course of a proceeding under this article" (Fam. Ct. Act §355.1 [1] [a], [b]).

While the establishment of a substantial change of circumstances is an indispensable

prerequisite to obtaining relief pursuant to Family Court Act §355.1 (Matter of Eugene S., 200

AD2d 574, 575; Matter of Chaz H., 298 AD2d 983, 984; Matter of Barry H., 309 AD2d 1147,

lv denied 1 NY3d 503; Matter of Zachary T.D., 26 AD3d 801, 802; Matter of Eric S.D., 37

AD3d 1045, 1046; Matter of Jonathan C., 51 AD3d 559, 560), the statute does not define that

term. Thus, in each case the court must conduct an individualized analysis in order to determine

whether there has been a substantial change of circumstances.

In determining whether the Court should grant relief pursuant to Family Court Act

§355.1, the Court observes that the criminal act to which respondent admitted, Sexual

Misconduct, is a class B misdemeanor, which as relevant to this case, is committed when a

person "engages in oral sexual conduct or anal sexual conduct with another person without such

person's consent" (Penal Law §130.20 [2]). Here respondent and the Presentment Agency

stipulated that the lack of consent was based solely upon the victim's lack of capacity to consent

due to her age (Penal Law §130.05 [3] [a]), and not based upon any other factor specified by

Penal Law §130.05 (3) (b-g), nor forcible compulsion (Penal Law §130.00 [8]).[FN4] The only

determinations made by this Court were that respondent engaged in oral sexual conduct with the [*7]

victim, and that the victim was unable to consent to such conduct by reason of her being less than

17 years of age.[FN5]

While the Court acknowledges the victim's belief that the respondent received a lenient

disposition, this was not a criminal action in which the court considers the need for deterrence,

rehabilitation, retribution, and isolation in imposing a sentence (see, People v. Notey, 72 AD3d

279, 282; People v. Suitte, 90 AD2d 80, 83; People v. Schonfeld, 68 AD3d 449, 457). Rather,

in this juvenile delinquency proceeding the Court was required to utilize the least restrictive

dispositional alternative, consistent with the needs and best interests of the respondent and the

need for protection of the community (Fam. Ct. Act §352.2 [2] [a]; Matter of Katherine W., 62

NY2d 947, 948; Matter of Devon N., 68 AD3d 523; Matter of Yonathan A., 70 AD3d 602;

Matter of Olivia B., 72 AD3d 589).

Accordingly, the Court adjudicated respondent to be a juvenile delinquent and based

upon the evidence adduced at the dispositional hearing, the Court determined that "neither the

public interest nor the ends of justice would be served by a placement and that probation

supervision is not appropriate" (Fam. Ct. Act §353.1 [1]). Respondent was therefore granted a

conditional discharge for a period of twelve months (Fam. Ct. Act §353.1), during which period

he was directed to comply with specific conditions which were found to be necessary and

appropriate to ameliorate the conduct which gave rise to the filing of the petition (Fam. Ct. Act [*8]

§§353.1 [2]; 353.2 [2] [h]). Additionally, respondent was directed to comply with an order of

protection issued on behalf of the victim (Fam. Ct. Act §352.3 [1]).

"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; see also, Matter of Jose R., 83 NY2d 388, 394-395;

Matter of Benjamin L., 92 NY2d 660, 670). In assessing whether respondent has demonstrated

a substantial change of circumstances since the entry of the order of disposition, the Court must

bear in mind that the ultimate goal of the juvenile justice system is to provide rehabilitation and

treatment to young people who have committed delinquent acts so that they may lead productive

and law-abiding adult lives (see, Matter of Quinton A., 49 NY2d 328, 334-335; Matter of

Carmelo E., 57 NY2d 431, 435; Green v. Montgomery, 95 NY2d 693, 697-698; Sebastian v.

State of New York, 250 AD2d 260, 262, aff'd 93 NY2d 790).

In this case, the respondent has complied with all of the conditions which were imposed

by the Court at the time of the conditional discharge, and he has conducted himself in a law-

abiding manner for nearly a full year since that order was issued. Respondent continues to be a

productive member of his community and school, and there is no indication that he requires

further supervision beyond that which he normally receives from his parents. The documents

submitted to this Court indicate that respondent does not suffer from any psychological

conditions which require treatment or monitoring, and the social worker who provided him with

counseling indicates that respondent has insight and understanding of the illegality and

inappropriateness of the behavior which brought him before the Family Court. Critically,

respondent has complied with the order of protection issued on behalf of the victim and there [*9]

is no indication that he has attempted to contact her in any fashion. The only contact which

respondent has with the victim has been inadvertent and resulting from the fact that both of their

families reside in the same neighborhood.

Finally, while respondent expressed some disagreement with the victim's version of

the underlying incident to the social worker who provided counseling, respondent has

acknowledged his culpability in his admission before this Court, as well as his own responsibility

for his actions which led to this case. Respondent has expressed his understanding that it is

improper for him to persuade a person who is legally incapable of consenting to engage in sexual

activity.

As respondent has complied with all of the conditions of the conditional discharge and

the order of protection issued by the Court on March 8, 2011, and the documents submitted by

respondent indicate that the intervention by this Court has succeeded in providing him with

appropriate treatment and rehabilitation, the primary goal of this proceeding has been achieved.

This constitutes a substantial change of circumstances which warrants relief under the statute.

While the Court is mindful of the feelings expressed by the victim and the personal

violation she experienced at the hands of the respondent, her long time neighbor, this proceeding

was never intended to punish the respondent. No societal purpose would be served by

permanently stigmatizing respondent with the designation of juvenile delinquent (see, In re

Winship, 397 US 358, 365), and public policy dictates that this case should not adversely affect

respondent's prospects for future educational and employment opportunities (Fam. Ct. Act

§380.1).

Accordingly, the motion for relief pursuant to Family Court Act §355.1 is granted to the [*10]

extent that the adjudication of juvenile delinquency made on March 8, 2011 is hereby vacated.

In addition, the conditional discharge granted on March 8, 2011 is similarly vacated, and in

place thereof the Court enters an order adjourning this juvenile delinquency proceeding in

contemplation of dismissal for a period expiring on March 8, 2012 (Fam. Ct. Act §§315.3;

355.1 [3]; Matter of Amber F., 23 Misc 3d 1101[A], 2009 NY Slip Op 50531[U]). Upon the

expiration of the adjournment period the proceeding shall be deemed to be dismissed in

furtherance of justice (Fam. Ct. Act §315.3 [1]; see, Matter of Edwin L., 88 NY2d 593), and

the record of this proceeding shall be sealed in accordance with Family Court Act §375.1 [2] [c]).

The order of protection issued on March 8, 2011 is hereby continued until its scheduled

expiration on March 8, 2012 (Fam. Ct. Act §352.3 [1]).[FN6]

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

March ____, 2012

Footnotes

Footnote 1:Prior to November 1, 2003 the crime codified in Penal Law §130.40 was known as Sodomy in the Third Degree (see, Laws of 2003, ch 264).

Footnote 2:Family Court Act §352.1 (1) provides that the respondent shall be adjudicated to be a juvenile delinquent if, at the conclusion of the dispositional hearing, "the court determines that

the respondent requires supervision, treatment or confinement."

Footnote 3:While an adjournment in contemplation of dismissal does not constitute a dispositional

order in a juvenile delinquency proceeding (Matter of Edwin L., 88 NY2d 593, 600; see, Matter

of Robert J., 2 NY3d 339, 343), this statement apparently relates to respondent's application that the Court grant an adjournment in contemplation of dismissal in place of the adjudication of juvenile delinquency and the previously granted conditional discharge.

Footnote 4:In addition to lack of capacity to consent due to age, the statute provides that a person

who is mentally disabled, mentally incapacitated, physically helpless, committed to a state prison

or local jail, or placed with the Office of Children and Family Services is "deemed incapable of

consenting" to sexual conduct (Penal Law §130.05 [3]). Forcible compulsion is defined as the use of physical force, or a threat which places a person in fear of immediate death or physical

injury (Penal Law §130.00 [8]).

Footnote 5:Indeed, as both the respondent and the victim were under the age of 17 on the date of the

incident, both lacked the capacity to consent to engage in sexual conduct.(Penal Law §130.00 [10]). While courts have dismissed juvenile delinquency petitions charging Sexual Misconduct where the participants were both less than 17 years of age, in those cases the alleged victim was a willing participant in the sexual conduct (Matter of Cerino P., 296 AD2d 868; Matter of Jessie C., 164 AD2d 731, 736, app dismissed 78 NY2d 907).

Footnote 6:Had the Court not granted respondent's motion for relief pursuant to Family Court Act

§355.1, in the interest of justice the Court would have granted his motion to seal the record after a finding pursuant to Family Court Act §375.2 (see, Matter of Donald R., 26 Misc 3d 1239[A], 2010 NY Slip Op 50469[U]; Matter of Kiara C., 31 Misc 3d 1245[A], 2011 NY Slip Op 51111[U]).