In the Matter of Jazmin A., A Person Alleged to be a Juvenile Delinquent / Presentment Agency
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 179
In the Matter of Jazmin A.,
A Person Alleged to be a Juvenile
Delinquent,
Respondent.
Presentment Agency,
Appellant.
Norman T. Corenthal, for appellant.
Claire V. Merkine, for respondent.
READ, J.:
On February 18, 2008, 14-year-old Jazmin A. returned
home after a four-day absence, whereupon she promptly announced
that she was leaving again.
When her mother objected and
attempted to block the door, Jazmin grabbed a kitchen knife with
a six-inch blade, and threatened that "No one is going to touch
me."
As Jazmin tried to fight her way past her mother, her
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No. 179
Before he succeeded in wresting the knife
away from her, though, Jazmin grazed his shoulder with the blade;
she also bit her stepfather's arm and chest, causing him to
bleed.
He was taken by ambulance to a hospital, where his bite
wounds were treated.
On February 25, 2008, the presentment agency filed a
petition asserting that Jazmin's acts, described above as
recounted in her stepfather's supporting affidavit, would, if
committed by an adult, constitute various assault and weapons and
menacing offenses.
On February 29, 2008, Family Court
adjudicated Jazmin delinquent upon her admission that she
committed an act constituting unlawful possession of a weapon by
a person under the age of 16, in violation of Penal Law § 265.05.
During the dispositional hearing on March 26, 2008, the
judge asked Jazmin's mother whether she was willing for Jazmin
to remain in her home.
The mother answered that she was so long
as Jazmin attended school and did not "stay or sleep out of the
house."
The following colloquy ensued between the judge and
Jazmin:
"THE COURT: Jazmin, do you understand that if I put you
on probation, I'm going to keep a very tight [rein] on
this case?
"[JAZMIN]: I understand that, ma'am.
"THE COURT: I'm going to have you come in to court for
reports. If I get a report that you are not
cooperating with the probation, that you're not keeping
your curfew, that you are staying out overnight, or
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No. 179
that you're not going to school, you're going to
quickly find yourself in detention and on your way to
placement [upstate]. Do you understand that?
"[JAZMIN]: Yes, I understand that, ma'am."
Family Court placed Jazmin in the Bronx Juvenile
Accountability Court (JAC) program for a 12-month period of
probation.
While in existence, JAC matched troubled youths with
an array of supportive services, such as counseling, tutoring and
drug treatment, as an alternative to residential placement.
Unlike regular probation, JAC participants appeared regularly in
Family Court for the judge to check on their progress.
The order
and conditions of probation imposed by Family Court required that
Jazmin report to and cooperate with her probation officer; obey
the lawful commands of her parents; observe curfew; attend school
regularly; submit to drug and alcohol testing; and comply with
the recommendations of a mental health assessment.
Jazmin arrived late to Family Court on April 16, 2008
for her first monitoring hearing.
report was not favorable.
The Department of Probation's
Of the 13 school days since her
probation began, Jazmin missed eight and was late twice.
According to her mother, Jazmin "stay[ed] out all night without
permission and [might] come home once or twice a week."
At the
conclusion of the hearing, Family Court remanded Jazmin to the
custody of the Commissioner of Juvenile Justice because she "was
choosing not to comply with the conditions of her probation."
Jazmin's law guardian objected to the remand on the ground that
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No. 179
the Department of Probation had not filed a violation of
probation (VOP) petition.
The judge scheduled another hearing to
be held nine days later, on April 25, 2008, "for probation to
take whatever further steps they believe[d] [to be] appropriate."
On May 19, 2009, the Appellate Division unanimously
reversed and vacated Family Court's April 16, 2008 order of
detention.
The court held that "[h]aving issued an order of
disposition placing [Jazmin] on probation, the Family Court
lacked authority to remand her to detention in the absence of a
violation of probation petition" (62 AD3d 526, 527 [1st Dept
2009]).
By the time the Appellate Division handed down its
decision, the Department of Probation had long since pursued a
VOP petition, resulting in a new order of disposition on June 6,
2008, which placed Jazmin on 12 months of probation under the
auspices of the Administration for Children's Services' Juvenile
Justice Initiative, another community-based alternative to
residential placement.
The court noted that it nonetheless
decided Jazmin's appeal because, although moot, the issue
presented was "substantial and novel" and "likely to recur and
evade review" (id.).*
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The Appellate Division explicitly declined to decide "the
hypothetical questions of whether [a properly made] motion under
Family Court Act § 355.1 to stay, modify or terminate an order of
probation based on change of circumstances would provide an
[alternative] means of initiating proceedings to revoke
probation, and whether detention would be authorized pending
resolution of such a motion" (62 AD3d at 527), presumably because
Family Court did not purport to act pursuant to this provision
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The Appellate Division subsequently granted the
presentment agency leave to appeal to us, certifying the
following question: "Was the order of this Court, which reversed
the order of Family Court, properly made?"
After sua sponte
examining our subject matter jurisdiction, we invoke the
exception to the mootness doctrine for the same reasons cited by
the Appellate Division and retain jurisdiction.
We now answer
the certified question in the affirmative.
Article 3 of the Family Court Act spells out specific
junctures in a delinquency proceeding when Family Court may
remand a juvenile to detention -- i.e., after a prepetition
hearing is held in anticipation of the filing of a juvenile
delinquency petition (Family Court Act § 307.4 [4] [c]); at the
"initial appearance" after a petition has been filed and "any
adjournments thereof" (Family Court Act § 320.1; see also Family
Court Act § 320.4 [2] [specifying what the court shall determine
at the initial appearance]); after a probable cause hearing is
held (Family Court Act § 325.3 [3]); and after a VOP petition is
and the issue was not properly presented for appellate review.
Section 355.1 (1) (b) specifies that "[u]pon a showing of a
substantial change of circumstances, the court may on its own
motion or on motion of the respondent or his parent or person
responsible for his care: . . . stay execution of, set aside,
modify, terminate or vacate any order issued in the course of a
proceeding under this article" (emphasis added). Section 355.1
(3) further 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."
Finally, a motion for relief under section 355.1 must be pursued
in accordance with the procedures specified in section 355.2.
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Because the
Legislature did not similarly empower Family Court to order
detention of a juvenile probationer before the filing of a VOP
petition, we are unwilling to imply such authority in the absence
of a statutory peg, as the presentment agency asks us to do.
As
Jazmin points out, "it is odd to suggest . . . that the
Legislature intended to permit detention before a VOP petition
has been filed when it enacted an express provision [i.e.,
section 360.3 (2) (b)] providing [for] a juvenile [to] be
detained after a VOP petition is filed."
Indeed, if Family Court
possesses inherent authority to order detention at any time
during the period of probation, section 360.3 (2) (b) would seem
to be unnecessary.
Moreover, while the presentment agency
correctly points out that Family Court retains jurisdiction over
a juvenile probationer until probation ends (see Family Court Act
§ 360.1; Matter of Markim Q., 7 NY3d 405 [2006]), continuing
jurisdiction does not vest Family Court with the power to take
actions not authorized by article three.
The presentment agency also seems to suggest that
Jazmin consented to detention, pointing to Family Court's
statement at the dispositional hearing that a poor probation
report meant that she would "quickly find [her]self in
detention," followed by Jazmin's acknowledgment that she
understood.
This brief exchange does not amount to a waiver of a
VOP petition, assuming that such a waiver could be obtained from
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No. 179
a minor in Jazmin's situation.
Finally, the presentment agency argues that the
monitoring hearing in this case was an "adjournment" of the
"initial appearance" within the meaning of Family Court Act §
320.1, which states that
"[w]hen used in this article [three,] 'initial
appearance' means the proceeding on the date the
respondent first appears before the court after a
petition has been filed and any adjournments thereof,
for the purposes specified in section 320.4."
As the Appellate Division correctly noted, however, a court
appearance for checking up on compliance with probation can not
be an "adjournment" of the "initial appearance" on the underlying
juvenile delinquency petition once a dispositional order has been
entered.
Accordingly, the order of the Appellate Division should
be affirmed, without costs, and the certified question answered
in the affirmative.
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Order affirmed, without costs, and certified question answered in
the affirmative. Opinion by Judge Read. Judges Ciparick,
Graffeo, Smith, Pigott and Jones concur. Chief Judge Lippman
took no part.
Decided November 17, 2010
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