Matter of Angel R.

[*1] Matter of Angel R. 2008 NY Slip Op 52393(U) [21 Misc 3d 1135(A)] Decided on October 24, 2008 Family Court, Bronx County Merchan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2008
Family Court, Bronx County

In the Matter of Angel R. A Person Alleged to be a Juvenile Delinquent.



D-21296-08



Tracie Reilly, Esq., Assistant Corporation Counsel, New York Law Department (Presentment Agency) and Lisa Blitman, Esq., Law Guardian on behalf of Respondent.

Juan M. Merchan, J.

By petition filed on September 12, 2008, Respondent is alleged to have committed acts which, if committed by an adult, would constitute the crimes of: Criminal Sexual Act in the First Degree, in violation of Penal Law §130.50(3), a class B Felony; Course of Sexual Conduct Against a Child in the First and Second Degrees, in violation of Penal Law §§130.75(1)(a) and 130.80(1)(a), class B and D felonies respectively; Sexual Abuse in the First Degree, in violation of Penal Law §130.65(1), a class D Felony; Criminal Sexual Act in the Third Degree, in violation of Penal Law §130.40, a class E Felony; and Sexual Misconduct, in violation of Penal Law §130.20, a class A Misdemeanor.

Respondent has moved to dismiss the petition in furtherance of justice, pursuant to Family Court Act §315.2, or in the alternative, for an Adjournment in Contemplation of Dismissal pursuant to Family Court Act §315.3. The Presentment Agency has opposed both applications.

The Presentment Agency presented its case in chief and rested on September 26, 2008. It then conceded that it had failed to meet its burden of proof at prima facie as to counts two and three, Course of Sexual Conduct Against a Child in the First Degree and Course of Sexual Conduct Against a Child in the Second Degree.

Upon review of all papers submitted and oral argument made in this proceeding, and after due deliberation thereon, this Court finds the following:

HISTORY

Respondent is a fifteen year-old boy and the Complainant is his seven year old female cousin. The alleged incident in question occurred on July 12, 2008, during an overnight visit by [*2]Complainant and Respondent to their grandmother's house in the Bronx. Complainant's five year-old cousin and twelve year-old sister were also present for the overnight visit. The alleged sexual conduct occurred while all four children were watching a movie in one of the bedrooms. Complainant alleges that she was laying on a bed about six inches from Respondent who was also laying on the bed. Complainant's sister sat on a chair in the bedroom but "would come and go" to be with her grandmother in the living room. Complainant's five year-old cousin was on the bed "a couple of times," but was mostly on the bedroom floor. The grandmother was in the living room though she did enter the bedroom at some point during the movie. Complainant claims that it was while they were watching the movie that Respondent allegedly "pull[ed] [Complainant's] pants down" and "put his private in [Complainant's] butt."

Respondent's moving papers in support of his motion to dismiss in furtherance of justice do not clearly address each of the seven factors delineated in Family Court Act §315.2(1). Instead, Respondent makes several arguments, among them that the Presentment Agency has failed to meet its burden of proof by failing to introduce medical records indicative of sexual abuse.

The Presentment Agency argues that Respondent has failed to address any of the seven factors which the Family Court Act requires a court to consider when ruling on a motion to dismiss in furtherance of justice. The Presentment Agency also opposes the motion because of the seriousness of the allegations and the circumstances of the alleged anal intercourse. It also argues that the needs of the Respondent and the protection of the community require that the Court deny the motion.

CONCLUSIONS OF LAW

Family Court Act §315.2(1), provides that a "petition ... may at any time be dismissed in furtherance of justice when, even though there may be no basis for dismissal as a matter of law ... such dismissal is required ... by the existence of some compelling further consideration or circumstances clearly demonstrating that a finding of delinquency or continued proceedings would constitute or result in injustice ..." The statute delineates seven factors which the court, shall to the extent applicable, examine, individually and collectively, when considering a motion to dismiss in furtherance of justice. The seven factors are:

a.the seriousness and circumstances of the crime;

b.the extent of harm caused by the crime;

c.any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the Respondent or in the presentment of the petition;

d.the history, character and condition of the Respondent;

e.the needs and best interests of the Respondent;

f.the need for the protection of the community; and

g.any other relevant fact indicating that a finding would serve no useful purpose.

A court is statutorily mandated to "set forth its reasons therefor upon the record" when rendering its decision on a motion to dismiss in furtherance of justice. Matter of Reginald V.H., 520 NYS2d 441 {134 AD2d 258} (2nd Dept. 1987). The power to dismiss in furtherance of justice is discretionary and should be exercised sparingly by the courts. People v. Bolton, 224 AD2d 436 (2nd Dept. 1996). [*3]

As the Court noted In The Matter of D.P., there is little reported case law addressing the issue of motions to dismiss in the interest of justice in the context of juvenile delinquency proceedings. In The Matter of D.P., 17 Misc 3d 1106(A) Family Court, Nassau County, 2007. There is therefore, little practical guidance regarding the appropriate application of FCA §315.2(1). It is however, generally agreed that at least one of the requisite factors must be "readily identifiable and sufficiently compelling to support the dismissal." Matter of Carlief V., 503 NYS2d 872 {121 AD2d 640} (2nd Dep. 1986).

In Matter of D.P., a case involving "after-school violence," the Court denied the motion to dismiss in the interest of justice holding that it "... is irrelevant that the alleged crime took place after school, that no weapon was used, or that [it] was not gang related ... [i]t also [did] not matter that [the] child [had] never been in trouble' with the police before as he was only twelve years old when the incident occurred." The Court reasoned that any claim of self-defense was more appropriately raised at the fact-finding hearing. Matter of D.P. at 4. In Matter of Patrick B.P., 103 Misc 2d 1102 (Fam.Ct., Kings, 1980), a case strikingly similar to the one sub judice, Respondent was charged with sexually abusing his younger sisters. He moved to dismiss in the interests of justice on the grounds that the Respondent's family wanted to seek independent rehabilitative services and did not wish to prosecute the matter in a quasi-criminal forum. In denying the motion, the Court held that it could not "sanction a respondent accused of the serious crimes of incestual rape and sodomy, to be allowed to be free from the watchful vigil of the court and participate in a treatment program on a voluntary basis supervised only by his parents ... [b]efore invoking the extreme remedy of dismissal, the court must have before it evidence that any further supervision, treatment or confinement is unnecessary." B.P. at 1103 and 1104.

In contrast, the petitions that have been dismissed in furtherance of justice have contained "some compelling further consideration or circumstances clearly demonstrating that a finding of delinquency or continued proceedings would constitute or result in injustice."In Matter of Tristan C., 595 NYS2d 635 {156 Misc 2d 1007} (Fam.Ct., Kings, 1993), the ten year old Respondent and his best friend were playing with guns which they both believed were not loaded. Respondent's friend directed Respondent to "make believe you're shooting me" which Respondent did by pointing the gun at his friend and pulling the trigger. The gun fired killing Respondent's friend instantly. Respondent was charged with criminally negligent homicide and criminal possession of a weapon in the fourth degree. The impact of the incident upon Respondent was devastating. Respondent suffered from extreme guilt, suicidal thoughts, flashbacks and nightmares. A psychiatrist diagnosed him with posttraumatic stress disorder and depressive disorder. In granting the motion to dismiss, the Court held that "the present juvenile delinquency proceeding by itself has aggravated [Respondent's] psychological trauma and could well impede his recovery." Tristan C. at 1009.

In Matter of P.C., 10 Misc 3d 1073(A), Slip Op. 52232(U) (Fam.Ct., Nassau, 2005), the Court granted the dismissal of a petition which alleged that the Respondent, an "incapacitated person" with mild retardation, engaged in sexual oral conduct with another person less than eleven years old. Finding that continuation of the proceedings "could unravel years of therapy and services, which is clearly not in the Respondent's best interests," the Court held that not dismissing the petition could lead to "an injustice, more trauma for the parties and their families, [*4]and the potential for a second victim if the matter were to proceed further." Id at 7.

In Matter of Deborah C., the First Department, reversed the Family Court's denial of a motion to dismiss where the twelve year-old Respondent was charged with scratching her little brother's name into a subway seat with a stone while accompanied by her mother and two other young children. Finding the offense to be relatively minor, the Court held that "the nature of the offense, which can be attributed more than anything to the mother's lack of supervision on the subway, is such that the Respondent should not be stigmatized as a juvenile delinquent because of any shortcomings of her mother and the [Family Court's] unreasonable refusal to again refer this matter for adjustment." Matter of Deborah C., 261 AD2d 138 at 138 and 139, Slip Op. 03995 (1st Dept. 1999).

ANALYSIS

In contrast to the above cases where dismissals were granted, this Court does not find the "rare" or "unusual" circumstances herein to warrant a dismissal in furtherance of justice. Furthermore, continuation of this proceeding against the Respondent would not work a substantial injustice. In accordance with §315.2(1) of the Family Court Act, this Court will examine and discuss the seven factors relevant to the analysis.

The first consideration is the seriousness and circumstances of the crime. It is evident that an allegation of incestual sexual abuse is a disturbing, complex matter which cannot be characterized as minor in nature or circumstance. Furthermore, the Complainant's tender age and familial relationship to the Respondent only serve to exacerbate the seriousness of the circumstances of the alleged crime charged.

The second consideration is the extent of harm caused by the crime. It is well documented that victims of sexual abuse suffer both short-term and long-term harm. It is conceivable that the extent of the harm caused by the alleged acts of the Complainant have yet to be fully realized and may not be for many years to come.

In his motion papers, Respondent argues that his "family is in distress and sadness regarding this case" (p12). The Court acknowledges that the distress caused by such an alleged lamentable act and explosive intra-family circumstance is very real. However, as the Presentment Agency has argued, such distress and sadness is an unfortunate consequence of the proceedings that come before the Family Court on an all too regular basis. Respondent has not demonstrated that the level of sadness and distress experienced by the Respondent and his family is any greater or rises beyond what might be expected in a case in which there are allegations of incestual sexual abuse. The distress and sadness, while terribly unfortunate, are not compelling circumstances to warrant dismissal.

Unlike some of the cases cited above where the courts did grant dismissal, there is no evidence that Respondent suffers from any mental illness, incapacity, or other sensitivity which might render him particularly susceptible to undue trauma. Respondent has not proffered any evidence to support any claim that the continuation of these proceedings would be so against the Respondent's interest as to constitute an injustice. Accordingly, the Court finds that the harm to the Respondent caused by the continuation of the proceedings is not sufficiently compelling.

Similarly, there has been no evidence presented of any misconduct on the part of law enforcement personnel in the investigation and arrest of Respondent and the history, character and condition of Respondent has not been addressed in any meaningful way in his moving [*5]papers.

Next, the Court will consider the best interests of the Respondent and the need for the protection of the community. If this Court were to find that Respondent did commit the alleged act, then it would be in Respondent's best interests for these proceedings to continue so that the Court may direct and supervise the appropriate intervention and treatment. Likewise, the need for the protection of the community requires that a child who has engaged in an act of sexual abuse, an issue which has yet to be determined, receive treatment to minimize the possibility that the child might repeat such an act upon another member of the community. This is particularly true where the act is as serious as the one alleged herein.

Respondent has not offered any other relevant fact indicating that a finding would serve no useful purpose.

CONCLUSION

Having considered the above factors, individually and collectively, this Court finds that no compelling circumstances exist to support Respondent's position that a finding of delinquency or that the continuation of this proceeding would constitute or result in injustice. A dismissal in the interest of justice here would not satisfy even one of the specific factors set forth in the Family Court Act. The motion to dismiss in the interest of justice is therefore denied.

The above constitutes the decision and order of this Court.

E N T E R:

_____________________________

Hon. Juan M. Merchan, J.F.C.

Dated: October 24 , 2008

Bronx, New York