Matter of D.W.

[*1] Matter of D.W. 2023 NY Slip Op 51003(U) Decided on September 25, 2023 Family Court, New York County Kingo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2023
Family Court, New York County

In the Matter of D.W., A Person Alleged to Be a Juvenile Delinquent.



Docket No. D-05387-23



Justin Choi, Esq. for Respondent — Lawyer for Children

April Pacis, Esq. for Petitioner — Corporation Counsel Hasa A. Kingo, J.

On August 18, 2023, Respondent filed a motion seeking an order granting the following relief:

(1) Dismissal of the petition in its entirety for constitutional violation of due process under In Re Benjamin L.;

(2) Dismissal of the sole count charged in the petition for facial insufficiency;

(3) A pre-trial Sandoval hearing to determine what if any alleged prior bad acts committed by Respondent may be raised during cross-examination if she were to testify, and a pre-trial Ventimiglia hearing to determine what, if any, uncharged crimes evidence may be introduced by the presentment agency during its direct case;

(4) Discovery, including the production of records pertaining to NYPD employees and/or other law enforcement involved in the arrest and/or investigation of this matter, including but not limited to disciplinary records;

The Presentment Agency filed an answering affirmation on September 15, 2023. Respondent filed a reply affirmation on September 20, 2023.

Following consideration of the motion, IT IS HEREBY ORDERED as follows:

As a threshold issue, Respondent moves to dismiss the petition for violation of procedural due process due to a delay in filing the petition, and for facial insufficiency. The Presentment Agency opposes the motion. The petition and supporting deposition allege that on [*2]that January 29, 2023, at approximately 12:30 p.m., Respondent and the complainant, Respondent's mother, were having a verbal argument. The complainant "then observed [Respondent] push me with her hands causing me to stumble backwards. I then observed [Respondent] pulling her bed away from the wall and pushing the wooden bed leg and frame into my right leg causing me to continue to stumble backwards. As a result of this incident, I sustained pain in my lower back and pain to my right knee and leg." The Presentment Agency filed the instant petition against Respondent on July 10, 2023, 162 days, or five months and eleven days, after the incident described in the petition.

Respondent first moves to dismiss the complaint on the grounds that a delay of this length is an unreasonable violation of procedural due process. "Once a suspect has been proceeded against in some sort of judicial proceeding as an accused, either by arrest, indictment, or other pretrial proceeding, [they are] entitled, in the absence of prosecutorial justification or excuse, to reasonably prompt prosecution of the charges against [them]" (People v Staley, 41 NY2d 789 [1977]). An unreasonable or unexplained delay in prosecution is a violation of the individual's constitutional right to a speedy trial that may require dismissal of the indictment or petition (id.). In the context of Juvenile Delinquency matters, the following factors should be examined in balancing the merits of an assertion that there has been a denial of an individual's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; and (4) whether or not there is any indication that the defense has been impaired by reason of the delay (People v Taranovich, 37 NY2d 442, 335 NE2d 303 [1975]; In re Benjamin L., 92 NY2d 660, 708 NE2d 156 [1999]).[FN1]

Turning to the first factor, in a juvenile delinquency proceeding there is no statutory time limitation for the filing a petition itself when the juvenile is not at a detention facility, and the length of the delay must be evaluated in conjunction with the remaining Taranovich factors. Nevertheless, it is noteworthy here that the 162-day delay that accrued prior to the filing of the petition is far greater than the 60-day speedy trial requirement from initial appearance to fact-finding in a juvenile delinquency proceeding or the 90-day speedy trial limit for misdemeanors in criminal court (FCA § 310.2; CPL § 30.30; see In re Hershel L., 182 Misc 2d 507, 511 [Fam Ct, Orange County 1999]).

As a reason for the delay, the Presentment Agency offers a timeline of the investigative efforts undertaken between Respondent's arrest and the filing of the petition. The timeline provided includes several delays of days and weeks, which add up to the 162-day delay in prosecution. These include, inter alia, two weeks spent identifying and interviewing the arresting officer, an unexplained month-long delay in attempting to contact the complainant, followed by several further delays in contacting and communicating with the complainant, and several other delays in preparing and filing the petition. Simultaneously, there also appears to have been a three-and-a-half-month delay in obtaining body worn camera videos from the arresting officer, however the full length of this delay is unclear because the timeline does not indicate when, if ever, the Assistant Corporation Counsel assigned to this matter received the videos.

With respect to the third factor, the nature of the underlying charge, this is a relatively simple matter with one charge. The petition describes two pushes, taking place in the context of a single discrete incident, and a verbal argument between the complainant and Respondent. There is no indication by the Presentment Agency, or in the Voluntary Disclosure Form ("VDF") served on Respondent, of additional witnesses or any physical evidence to pursue, aside from body worn camera footage of the arresting officer.

Considering these factors, it is evident that the length of the delay here is disproportionate to the relative simplicity of the matter. The narrative offered by the Presentment Agency describes, fundamentally, an average prosecutorial process, beset by several administrative delays and some challenges in contacting the complainant. There are no unique or abnormal challenges described by the Presentment Agency. Thus, the delay was unreasonable. As noted by the Court of Appeals in Benjamin, this kind of delay in the juvenile context is particularly profound because a "juvenile is less likely than an adult to preserve his or her memory concerning the incident in question, his or her whereabouts on relevant dates, the identity of potential witnesses, and various other crucial details" (In re Benjamin L., 92 NY2d at 669). That is particularly the case where, as noted by Respondent's counsel, the child often had disputes and arguments with the complainant.

The timeline provided by the Presentment Agency also indicates that, approximately four months after Respondent was arrested, the Presentment Agency was alerted to another Manhattan arrest regarding Respondent. This further highlights the need for speedy filing and prosecution of juvenile delinquency matters. Had the Presentment Agency promptly filed the petition, Respondent would likely have been receiving intervention services by this time, which may have prevented a second arrest. Thus, Respondent was further prejudiced by the prosecutorial delay.

There is an oftentimes repeated adage, attributed to the British statesman William E. Gladstone, that "justice delayed is justice denied." Where delay is unavoidable, as may be the case during a particularly complex litigation riddled with proofs requiring full consideration by the prosecution prior to filing a charging instrument, it is understandable why weeks, months, and even sometimes years may elapse before an induvial is formally accused of wrongdoing. But where, as here, the complexity of the matter is absent, delay is inexcusable. Therefore, it is the determination of this court that the 162-day delay in filing the petition violated Respondent's constitutional right to a speedy hearing, and that dismissal is appropriate in furtherance of justice.

Dismissal is also appropriate on the grounds of facial insufficiency. Among other requirements, a petition filed pursuant to Article 3 of the Family Court Act must set forth factual statement(s) that "asserts facts supporting every element of each crime charged and the respondent's commission thereof" (FCA § 311.1[3][h]). A petition is facially sufficient when "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof" (Family Ct Act § 311.2[3]; Matter of Nelson R., 90 NY2d 359, 362 [1997]). These requirements are jurisdictional in nature and are non-waivable (Matter of Neftali D., 85 NY2d 631, 635 [1995]). A court reviewing for facial insufficiency must assume that the factual allegations contained in the petition are true for the purpose of the motion and must consider all reasonable inferences that may be drawn from them (see People v Jackson, 18 NY3d 738, 747 [2012]).

Under Penal Law § 110.00, "[a] person is guilty of an attempt to commit a crime when, [*3]with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." Penal Law § 120.00 provides the following, in relevant part:

§ 120.00 Assault in the third degreeA person is guilty of assault in the third degree when:1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or2. He recklessly causes physical injury to another person; or3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

"Physical injury" is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00). To be guilty of an attempted crime, the attempt must come "very near" or "dangerously close" to accomplishment of the intended crime" (People v Mahboubian, 74 NY2d 174, 190 [1989]).

A rationally drawn inference that logically flows from the facts alleged is enough to support a finding of intent to commit a crime (People v Dreyden, 28 Misc 3d 5, 8 [App Term, 2nd Dept 2010]). Whether an alleged impairment of physical condition or pain is sufficient to establish physical injury is generally one for the trier of fact, but "there is an objective level . . . below which the question is one of law, and the charge should be dismissed." (Matter of Philip A., 49 NY2d 198, 200 [1980]). "'[P]etty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' are not within the definition" of physical injury (id., quoting Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330).

To be facially sufficient, the factual allegations in the petition, and the reasonable inferences that flow from these allegations, must demonstrate reasonable cause to believe that Respondent intended to cause physical injury (physical impairment or substantial pain) to the complainant, and that she engaged in conduct that came very close or dangerously close to causing such physical injury. The petition alleges that Respondent, while engaged in an argument with the complainant, pushed the complainant once with her hands and once with a bedframe. With respect to the injury, the petition specifies only that Respondent suffered pain in her back, leg, and knee. These allegations, without more, are insufficient to demonstrate an intent to cause physical injury. Likewise, the allegations are devoid of reference to even a mere suggestion that Respondent's actions came dangerously close to the commission of a completed assault [see People v Jordan, 43 Misc 3d 1210(A) [Crim Ct, NY County 2014; People v Chavez, 41 Misc 3d 526 [Crim Ct, Bronx County 2013]; compare People v. Dreyden, 28 Misc 3d 5 [App Term, 2d Dept 2010]). The pushes described do not rise above the level of "petty slaps, shoves, or kicks" and the pain referenced in the petition is below the threshold for physical injury. Accordingly, the charge is facially insufficient, and both the charge and petition are dismissed.

Accordingly, Respondent's motion is granted to the extent that the petition is dismissed, and Respondent's remaining prayers for relief are rendered moot by virtue of that dismissal.

This constitutes the decision and order of the court.

Dated: September 25, 2023
HASA A. KINGO, J.F.C. Footnotes

Footnote 1:A fifth Taranovich factor, whether or not there has been an extended period of pretrial incarceration, is not applicable here and is generally inapplicable in juvenile delinquency matters due to the strict time limitations promulgated in the Family Court Act for filing a petition when a juvenile is detained.