IN RE: DANIEL C. (2007)

The Presentment Agency, Corporation Counsel of the City of New York, has moved for an order authorizing the temporary release of the respondent, Daniel C., from the custody of the New York City Department of Juvenile Justice, to the custody of a New York City police detective so that the detective may conclude an investigation into other possible criminal activity in which respondent is a suspect.

By petition filed pursuant to Family Court Act § 310.1 on October 25, 2006 respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Robbery in the First and Second Degrees, Robbery in the Third Degree, Grand Larceny in the Fourth Degree, Criminal Possession of a Weapon in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree and Menacing in the Third Degree.

Respondent's initial appearance upon the petition was concluded by the Court on October 25, 2006 and he was released to the custody of his father under the conditions that he obey a 6:00 P.M. curfew and a temporary order of protection which directed, inter alia, that he have no contact with the alleged victim (Fam. Ct. Act §§ 320.5[1], [2], 304.2;  22 NYCRR § 205.25).   Respondent thereafter filed a pre-trial motion and the Court ordered Wade and Huntley hearings for December 12, 2006.   On that date, the Assistant Corporation Counsel advised the Court that she had been informed that respondent was suspected of committing another robbery in August of 2006, but that no charges had been filed concerning that incident because the alleged victim in that incident had not positively identified the respondent as the perpetrator, although he was apparently identified by an eyewitness.   The case was adjourned until December 13, 2006 so that a new Law Guardian could be appointed and to permit the Department of Probation to obtain records relating to the respondent and to conduct a drug test.   The Court stated that the Presentment Agency could renew its application to have respondent detained in the event that either criminal or juvenile delinquency proceedings were commenced against respondent with respect to the August 2006 incident.

On December 13, 2006 a new Law Guardian was appointed and the Court was advised by the Department of Probation that respondent had not been attending school regularly and that he had tested positive for marijuana.   Accordingly, the Court revoked its order releasing respondent and entered an order directing his detention pending further proceedings upon the petition on December 21, 2006 (see, Fam. Ct. Act § 320.5[3] ).   On December 18, 2006 the Presentment Agency filed its first application for an order directing respondent's temporary release from detention in relation to the August 2006 incident and that application was denied with leave to renew upon the submission of further papers.   On December 21, 2006, respondent entered an admission that he committed an act which would constitute the crime of Grand Larceny in the Fourth Degree in satisfaction of the petition and the case was continued for a dispositional hearing.   Respondent's detention was continued and the Court directed that the Department of Probation conduct an investigation and that respondent be evaluated by the Family Court Mental Health Services Clinic (Fam. Ct. Act § 351.1[2] ).   On January 11, 2007 the case was further adjourned so that respondent could be examined by a neurologist and in order to determine whether respondent was suitable for placement on probation under the “Esperanza” program, which is a project of the Vera Institute for Justice designed to provide intensive community based supervision for adjudicated juvenile delinquents and youthful offenders.   On that same date, the Presentment Agency filed the present motion seeking respondent's temporary release to the Police Department.   The dispositional hearing has since been adjourned until February 28, 2007 for a further exploration of possible dispositional alternatives and for completion of the neurological evaluation of the respondent.

 A

In support of the application for the order temporarily releasing the respondent to the custody of Detective McGuire of the 109th Precinct Detective Squad,¹ the Presentment Agency states, in pertinent part, that the respondent should be released to the custody of the detective for the purpose of his appearance in a line-up and for arrest processing relating to a robbery of a victim named “A.C.” which is alleged to have occurred in Queens County on August 6, 2006.   According to the Assistant Corporation Counsel, she has been informed by Detective McGuire that A.C. informed him that “he was approached by a group of males” in “the vicinity of Union Street and 33rd Avenue” and that he was “punched and kicked” and his personal property was taken from his person.   Additionally, Detective McGuire interviewed an eyewitness named “D.K.” who told the detective that respondent, “who is also known as Go Ku' approached the victim with a group of males who punched an kicked the victim on or about August 6, 2006.”   Moreover, D.K. “did identify the respondent, Daniel Chang, as the person who punched the victim in the stomach and took property from the victim.   Furthermore, the complainant [A.C.] recently identified the respondent from a photo array as being one of the individuals involved in the robbery committed against him.”

 II

 The Family Court acquired jurisdiction over the person of the respondent upon the filing of the pending juvenile delinquency petition against respondent on October 25, 2006.   That jurisdiction includes the authority to release the respondent under authorized terms and conditions pending further proceedings upon the petition, as well as authority to direct that he be held in detention (Fam. Ct. Act § 320.5).²  Because “[t]he consequences of prolonged detention may be more serious than the interference occasioned by [an] arrest [and][p]retrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships” (Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 [1975] ), as a general rule “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception” (United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 [1987] ) ³ .

Thus, while preventive pre-trial detention is the exception in the adult criminal justice system, it is employed far more routinely in juvenile delinquency proceedings.   Courts have recognized a legitimate state interest in treating juveniles differently than adults with respect to preventive pre-trial detention, which has been found to be both statutorily sanctioned and constitutionally permissible as applied to juveniles.   In uniformly upholding juvenile pre-trial detention statutes, courts have given great weight to the juvenile's presumed lack of maturity and inability to make sound judgments as well as the need to protect the juvenile and the community from the possibility that the juvenile may engage in further acts of delinquency prior to trial (Schall v. Martin, 467 U.S. 253, 274, 104 S.Ct. 2403, 81 L.Ed.2d 207 [1984];  People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 687–689, 385 N.Y.S.2d 518, 350 N.E.2d 906 [1976];  Alfredo A. v. Superior Court of Los Angeles County, 6 Cal.4th 1212, 1215, 26 Cal.Rptr.2d 623, 865 P.2d 56 [CA.Sup.Ct. 1994], cert. denied 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 [1994];  People v. Juvenile Court of the City and County of Denver, 893 P.2d 81, 94–95 [CO.Sup.Ct. 1995];  Morris v. D'Amario, 416 A.2d 137, 139–140 [RI.Sup.Ct. 1980];  see also, Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 [1993] [upholding INS regulation providing for pre-hearing preventive detention of juvenile aliens] ).⁴

 A

 Thus, given the Court's in personam jurisdiction over the respondent by virtue of the filing of the pending juvenile delinquency proceeding and the subsequent detention order entered in this case, the Court must determine whether it may order respondent released to the custody of law enforcement authorities for the purpose of permitting them to conduct and complete their investigation into criminal activity unrelated to the pending case in which respondent is a suspect.

Clearly, the Family Court Act authorizes the Court to enter an order directing that an accused juvenile delinquent perform certain acts or submit to certain intrusions.   Aside from the authority to order the respondent detained pending further proceedings, a clear curtailment of the juvenile's liberty interest, the court may parole him or her upon specific conditions ⁵ .  In addition, the Court is authorized to direct that a respondent appear in a line-up, speak for identification by a witness or a potential witness, be fingerprinted, pose for photographs, permit the taking of samples of blood or other materials from his or her body, provide a handwriting sample, or submit to a reasonable physical or medical examination of his or her body (Fam. Ct. Act § 331.3[2][b] [i-vii];  see, Criminal Procedure Law § 240.40[2][b] [i-vii];  People v. Middleton, 54 N.Y.2d 42, 47, 444 N.Y.S.2d 581, 429 N.E.2d 100 [1981];  People v. Slavin, 1 N.Y.3d 392, 397, 775 N.Y.S.2d 210, 807 N.E.2d 259 [2004], cert. denied 543 U.S. 818, 125 S.Ct. 64, 160 L.Ed.2d 26 [2004];  People v. Randt, 142 A.D.2d 611, 613, 530 N.Y.S.2d 266 [1988];  Matter of Ford v. Kreindler, 206 A.D.2d 425, 426, 614 N.Y.S.2d 439 [1994];  People v. Pryor, 14 A.D.3d 723, 725, 787 N.Y.S.2d 503 [2005], lv. denied 6 N.Y.3d 779, 811 N.Y.S.2d 346, 844 N.E.2d 801 [2006];  People v. Kopp, 33 A.D.3d 153, 159, 817 N.Y.S.2d 806, lv. denied 7 N.Y.3d 849, 823 N.Y.S.2d 779, 857 N.E.2d 74 [2006] ).

 The Family Court's authority to compel non-testimonial evidence under Family Court Act § 331.3, like that of a criminal court acting pursuant to Criminal Procedure Law § 240.40, is circumscribed by both statutory and constitutional limitations.   To that end, the Criminal Procedure Law and Family Court Act both provide in almost identical language, that:  “[t]his subdivision shall not be construed to limit, expand, or otherwise affect the issuance of a ․ court order, as may be authorized by law, before the filing of an accusatory instrument [petition] consistent with such rights as the defendant [respondent] may derive from the constitution of this state or of the United States” (Criminal Procedure Law § 240.40[2];  Fam. Ct. Act § 331.3[2] [italics added] ), thus reflecting the possibility that a court order for non-testimonial evidence may be sought prior to the filing of an accusatory instrument or delinquency petition.   An application for a court order authorizing pre-filing disclosure of non-testimonial evidence is an integral part of a criminal action or juvenile delinquency proceeding, as evidenced by the fact that in order to prevail upon their application the prosecution must demonstrate to the Court that there is probable cause or reasonable cause to believe that the respondent committed the crimes for which his production is sought, as well as a clear indication that the non-testimonial evidence which is being sought will result in the discovery of relevant material evidence or substantive probative evidence (Matter of Abe A., 56 N.Y.2d 288, 298, 452 N.Y.S.2d 6, 437 N.E.2d 265 [1982];  People v. Moselle, 57 N.Y.2d 97, 108, 454 N.Y.S.2d 292, 439 N.E.2d 1235 [1982];  Matter of William D. v. Rohl, 148 A.D.2d 706, 707, 539 N.Y.S.2d 451 [1989];  Matter of Tucker v. Buscaglia, 262 A.D.2d 979, 979–980, 693 N.Y.S.2d 373 [1999];  People v. Afrika, 9 A.D.3d 876, 877, 779 N.Y.S.2d 692 [2004], amended 11 A.D.3d 1046, 782 N.Y.S.2d 390 [2004];  People v. Clark, 15 A.D.3d 864, 865, 788 N.Y.S.2d 800 [2005], lv. denied 4 N.Y.3d 885, 798 N.Y.S.2d 730, 831 N.E.2d 975;  Matter of Valdes v. DeRosa, 28 A.D.3d 781, 782, 814 N.Y.S.2d 234 [2006];  see also, People v. Bush, 112 A.D.2d 1046, 1047, 492 N.Y.S.2d 834 [1985];  People v. Pryor, 14 A.D.3d 723, 725, 787 N.Y.S.2d 503 [2005] ).

 Reasonable cause means probable cause (People v. Maldonado, 86 N.Y.2d 631, 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028 [1995];  People v. Chaney, 253 A.D.2d 562, 563, 686 N.Y.S.2d 871 [1998];  Matter of Fitzpatrick v. Rosenthal, 29 A.D.3d 24, 28, 809 N.Y.S.2d 729 [2006], lv. denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ), and probable cause is defined as having knowledge of facts and circumstances sufficient to support a reasonable belief that a crime has been committed by the respondent (see, People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985];  People v. Hicks, 68 N.Y.2d 234, 238, 508 N.Y.S.2d 163, 500 N.E.2d 861 [1986];  People v. Yancy, 86 N.Y.2d 239, 245, 630 N.Y.S.2d 985, 654 N.E.2d 1233 [1995];  People v. Maldonado, at 635, 635 N.Y.S.2d 155, 658 N.E.2d 1028;  People v. Shulman, 6 N.Y.3d 1, 25–26, 809 N.Y.S.2d 485, 843 N.E.2d 125 [2005], cert. denied 547 U.S. 1043, 126 S.Ct. 1623, 164 L.Ed.2d 339 [2006] ).   In determining whether probable cause sufficient to order non-testimonial evidence exists, the Court should consider all of the facts and circumstances presented in their entirety (see, People v. Shulman, at 26, 809 N.Y.S.2d 485, 843 N.E.2d 125;  People v, Agha, 37 A.D.3d 1202, 1205, 829 N.Y.S.2d 302, 2007 N.Y. Slip Op. 00946 at *2), and the Court may rely upon hearsay information in reaching its determination (People v. Clark, at 865, 788 N.Y.S.2d 800;  People v. Afrika, 13 A.D.3d 1218, 1219, 787 N.Y.S.2d 774 [2004], lv. denied 4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675 [2005];  People v. Kopp, at 159, 817 N.Y.S.2d 806).

Here, a review of the Assistant Corporation Counsel's affirmation concerning the respondent's status as a suspect in the assault and robbery alleged to have occurred in Queens County on August 6, 2006 indicates that there are sufficient facts under the applicable New York probable cause standard which create a reasonable belief that respondent was involved in that incident (see, People v. Bigelow, at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Hetrick, 80 N.Y.2d 344, 348, 590 N.Y.S.2d 183, 604 N.E.2d 732 [1992];  People v. Richards, 32 A.D.3d 545, 547, 821 N.Y.S.2d 104 [2006];  People v. Bahr, 35 A.D.3d 909, 910, 825 N.Y.S.2d 809 [2006] ).   Specifically, a named eyewitness, D.K., informed Detective McGuire that respondent was one of a group of males who assaulted and robbed the victim on August 1, 2006 and the eyewitness provided the detective with respondent's alias, “Go Ku”. In addition, the alleged victim, A.C., told Detective McGuire that he was assaulted and robbed by a group of males on August 6, 2006 and critically, both the eyewitness and the victim have identified respondent as one of the perpetrators by means of a photographic array conducted by the police.   These facts and circumstances, based upon interlocking information provided by the alleged victim and an eyewitness, establish probable cause to believe respondent was involved in the incident of August 1, 2006.   While it does appear that there is already sufficient information available to both the police and the Presentment Agency to arrest and file a petition against the respondent for the August 1, 2006 incident, that is not a factor which the Court may consider upon this application.   The fact that probable cause to arrest already appears to exist is not a grounds upon which an application to compel non-testimonial evidence may be denied.

The protection of the rights of juveniles who are accused or suspected of committing crimes is a high priority (see, People v. Mitchell, 2 N.Y.3d 272, 275, 778 N.Y.S.2d 427, 810 N.E.2d 879 [2004];  People v. Salaam, 83 N.Y.2d 51, 55–57, 607 N.Y.S.2d 899, 629 N.E.2d 371 [1993];  People v. Gotte, 150 A.D.2d 488, 541 N.Y.S.2d 89 [1989], lv. denied 74 N.Y.2d 896, 548 N.Y.S.2d 429, 547 N.E.2d 956 [1989];  Matter of Robert P., 177 A.D.2d 857, 858, 576 N.Y.S.2d 626 [1991];  People v. Smith, 217 A.D.2d 221, 232, 635 N.Y.S.2d 824 [1995], lv. denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270 [1996];  People v. Morales, 228 A.D.2d 525, 644 N.Y.S.2d 303 [1996], lv. denied 88 N.Y.2d 1070, 651 N.Y.S.2d 414, 674 N.E.2d 344 [1996] ).   Given that the application will be granted, the issue remains whether any specific conditions should be imposed by the Court to protect the rights of this detained respondent.   Since respondent's right to counsel (see, In re Gault, 387 U.S. 1, 34–42, 87 S.Ct. 1428, 18 L.Ed.2d 527 [1967];  Matter of Lawrence S., 29 N.Y.2d 206, 209, 325 N.Y.S.2d 921, 275 N.E.2d 577 [1971];  Fam. Ct. Act §§ 241, 249[a];  320.2[2] ) has indelibly attached with respect to the criminal acts allegedly committed on August 6, 2006 by virtue of the Presentment Agency's application to this Court for his temporary release from detention to the custody of the police for their investigation of the August 6, 2006 incident (see, Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 [1972];  People v. West, 81 N.Y.2d 370, 373, 599 N.Y.S.2d 484, 615 N.E.2d 968 [1993];  People v. Ramos, 99 N.Y.2d 27, 32, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002];  People v. Grice, 100 N.Y.2d 318, 320–321, 763 N.Y.S.2d 227, 794 N.E.2d 9 [2003];  see also, People v. Burdo, 91 N.Y.2d 146, 150, 667 N.Y.S.2d 970, 690 N.E.2d 854 [1997];  People v. Cohen, 90 N.Y.2d 632, 638 n., 665 N.Y.S.2d 30, 687 N.E.2d 1313 [1997] ) ⁶ , and respondent is presently represented by a Law Guardian in the present case who has filed papers in opposition to the Presentment Agency's application, it is appropriate to condition the Court's order of temporary release to ensure that respondent's right to counsel as to the pending petition and the crimes allegedly committed by him on August 6, 2006 is respected.

Accordingly, it is hereby

ORDERED, that the Presentment Agency's motion is granted and the Commissioner of Juvenile Justice shall temporarily release the respondent to the custody of New York City Police Detective McGuire or another member of the Police Department for the purpose of placing respondent in a lineup concerning the incident alleged to have occurred in Queens County on August 6, 2006 and for any other lawful purpose which may include, without limitation, questioning and arrest processing;  and it is further

ORDERED, that respondent shall not be placed in any lineup or be questioned by members of the Police Department concerning the incident of August 6, 2006 in the absence of his Law Guardian, Patrick A. Griffiths, Esq., and it is further

ORDERED, that the Presentment Agency shall provide Mr. Griffiths and the Department of Juvenile Justice with reasonable notice of the date and time upon which respondent shall be temporarily released to the custody of Detective McGuire or other member of the Police Department and that Mr. Griffiths shall be permitted a reasonable opportunity to appear at the location where any lineup or other investigation shall occur;  and it is further

ORDERED, that upon completion of the investigation by Detective McGuire or other member of the Police Department, respondent shall be returned to the place where he is being detained by the Commissioner of Juvenile Justice pursuant to the detention order issued by this Court in this case.

This constitutes the decision and order of the Court.

The Presentment Agency shall serve a copy of this order upon Patrick A. Griffiths, Esq. and the Commissioner of Juvenile Justice or his designee forthwith.

FOOTNOTES

1.   The motion refers to the requested order as a “takeout order”. However, the Court has denominated the application as one seeking the temporary release of the juvenile from detention.

2.   While there is no right to bail in a juvenile delinquency proceeding and a juvenile may not be released on recognizance (Matter of Natasha C., 80 N.Y.2d 678, 681, 593 N.Y.S.2d 986, 609 N.E.2d 526), an order entered at the initial appearance pursuant to Family Court Act § 320.5, is the functional equivalent of a securing order entered in a criminal action (see, Criminal Procedure Law §§ 510.10–510.30;  In re Bauer, 3 N.Y.3d 158, 160, 785 N.Y.S.2d 372, 818 N.E.2d 1113).

3.   In United States v. Salerno, the Supreme Court found the provisions of the federal Bail Reform Act of 1984 (18 USC § 3141 et seq.) which provides for pretrial detention of persons charged with serious felonies to be constitutional (481 U.S. at 755, 107 S.Ct. 2095).   In upholding the statute, the Court observed that pretrial detention could only be ordered after an adversarial hearing at which the Government established that the defendant poses a threat to the safety of individuals or society which cannot be dispelled by any conditions of release imposed by the trial court (id.;   see, United States v. Montalvo–Murillo, 495 U.S. 711, 717, 110 S.Ct. 2072, 109 L.Ed.2d 720 [1990] ).   In reaching a determination on whether to order pretrial detention, the trial court is required to consider several factors, including the nature and seriousness of the charges, the weight of the Government's evidence against the defendant, the defendant's background and character, and the particular danger which would occur were the defendant to be released pending trial (481 U.S. at 741–742, 107 S.Ct. 2095).

4.   The cases finding pre-trial preventive detention of alleged juvenile delinquents constitutional have been subject to criticism on the ground that such detention impermissibly interferes with and violates the minor's liberty interest under the Constitution, and that the courts rely on unsupported generalizations concerning young people in deciding whether to detain them pending trial (e.g., Note, Pretrial Detention of Juveniles:  Denial of Equal Protection Masked by the Parens Patriae Doctrine, 95 Yale L.J. 174, 185–186 [1985] [state's disparate treatment of juveniles with respect to pre-trial detention denies equal protection];  Comment, The Supreme Court and Pretrial Detention of Juveniles:  A Principled Solution to a Due Process Dilemma, 132 U. Pa. L.Rev. 95, 111 [1983] [statutes force decisions that are premature and not based upon complete information] ).

5.   Should the respondent be released at the initial appearance, the Court may direct that he or she attend school regularly, abstain from committing crimes or offenses under the Penal Law, observe a curfew and participate in an alternative to detention program (22 NYCRR § 205.25 [a] [1]-[5] ).   Random drug testing is also imposed as a condition of release where drug use is a concern (22 NYCRR § 205.25[a][5] ).

6.   A juvenile's right to counsel is not dependent upon when a formal juvenile delinquency petition is filed by the Presentment Agency pursuant to Family Court Act § 310.1(1).   Notably, Family Court Act § 320.3 provides, in pertinent part, that “[a]t the time the respondent first appears before the court, the respondent and his [her] parent or other person legally responsible for his [her] care shall be advised of the respondent's ․ right to be represented by counsel”, and a respondent's first appearance on a particular set of charges may occur prior to the filing of a petition (e.g., Fam. Ct. Act §§ 307.3[4], 307.4[2] [application for pre-petition detention] ).

JOHN M. HUNT, J.