IN RE: TM (2009)

On October 30, 2009, Respondent filed an Omnibus Motion (Motion) seeking discovery and a suppression hearing to preclude out-of-court statements and identifications made of the Respondent. Respondent sought to preclude inquiry into Respondent's past criminal conduct by the Presentment Agency at fact-finding. Finally, Respondent sought permission for late service of the Motion.

Following a review of the Motion and the Presentment Agency's Answer, the Court denies Respondent's application for an extension of time to file under Family Court Act § 332.2, but on its own motion, precludes the Presentment Agency from inquiry into Respondent's prior criminal acts during fact-finding on the instant petition.

Family Court Act § 332.2 requires that all pre-trial motions be filed within 30 days after the conclusion of the initial appearance and before commencement of the fact-finding, or within such additional time as the court may fix upon application of the respondent. The Legislature's intent was to provide a speedy trial for respondents in a juvenile delinquency proceeding. (In Re George T., 99 N.Y.2d 307 [2002] ). A motion to suppress must be filed before commencement of a fact-finding hearing. Fam Ct Act § 330.2(3).

Respondent's initial appearance on this was September 14, 2009 for arraignment. He was paroled to the care of his mother. On September 24, 2009, counsel for Respondent appeared on the record and agreed that all motions would be made returnable by October 15, 2009. Counsel agreed that any answer would be served no later than October 22, 2009. Fact finding is scheduled for December 16, 2009.

Respondent's counsel concedes that her failure to timely file the motion does not amount to good cause. Her excuse, which she describes as “law office failure,” precludes late filing. While here, counsel agreed to a schedule by which the motion should be filed, in general, the schedule is set by statute. Quite simply, motions are due thirty days from the initial appearance unless otherwise specified by the court. Respondent's motion date was thirty days after arraignment. This court never enlarged that time frame.

The justification for the rule, which underlies the purpose of the speedy trial provisions of Article 3, is to reach resolution on the merits quickly. The short time frame exists because these cases involve children and adolescents. Their sense of time differs from that of adults. Given the importance of time in a child's life, court delay may have implications for juveniles that are both quantitatively and qualitatively different than its implication for adults. (Butts, Speedy Trial in the Juvenile Court, 23 Am J Crim L 515, 539 [1996] ) For adolescents, the passage of time during these years is accelerated. A delay of months may feel like years. (Id. at 522, 756 N.Y.S.2d 103, 786 N.E.2d 2)

Legal sanctions in the juvenile setting are designed to teach offenders that unlawful behavior has consequences. (In re Benjamin, 92 N.Y.2d 660 [1999] ). An adolescent's capacity to understand the nature of consequences hinges on the speediness with which consequences follow action. They must understand that any consequence will occur quickly. The rule is not just procedural. It serves a rehabilitative function. “Minimizing the time between the arrest and disposition in a juvenile delinquency case may be especially desirable because of the nature of adolescents. Indeed a delay in the proceedings may undermine a court's ability to act in its adjudicative and rehabilitative capacities.” (Id., citing Butts, Speedy Trial in the Juvenile Court, 23 Am J Crim L at 525 [1996] ).

Nothing in Respondent's motion suggests that the interest of justice will be served by permitting late filing. Thus, Respondent motion is denied.

However, the Presentment Agency is precluded from cross-examining the Respondent on the circumstances related to any pending juvenile delinquency matter. (People v. Sandoval, 34 N.Y.2d 371 [1974] ). The Respondent is entitled to invoke the privilege against self-incrimination. (In re Gault, 387 U.S. 1 [1967] ). There is no reason to require Respondent to assert that right here. Forcing the Respondent to invoke that right during cross-examination is prejudicial because it allows the Presentment Agency to spread facts underlying the allegations in the form of questions. The questions themselves are ones that Respondent does not have to answer. Thus, there is no purpose to them being raised.

Both sides are expected to stand ready for trial on December 16, 2009.

So Ordered.

LEE H. ELKINS, J.