IN RE: a Proceeding Under Article 3 of the Family Court Act

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Family Court, Chemung County, New York.

IN RE: a Proceeding Under Article 3 of the Family Court Act, LANCE BB, A Person Alleged to be a Juvenile Delinquent, Respondent.

Decided: November 03, 2006

Andrew M. Rothstein, Law Guardian, for respondent. Weeden A. Wetmore, County Attorney (Scott N. Fierro of counsel), for petitioner.

Before the Court is the law guardian's suppression motion which raises an issue apparently unreported to date:  is a victim-guardian who is estranged from his suspect-ward and who had earlier expelled the ward from the home, an appropriate person to whom notice of the juvenile's police custody should be given?   For the reasons below, the Court answers that query in the negative.

On August 2, 2006 the Chemung County Attorney's Office (hereinafter Presentment Agency) filed a petition pursuant to Article 3 of the New York State Family Court Act, alleging respondent Lance BB (hereinafter respondent) to be a juvenile delinquent.   The petition alleges that between January 28, 2006 and January 29, 2006, respondent knowingly entered and unlawfully remained in the residence of respondent's grandfather (hereafter Smith), and did steal 27 sport jerseys valued at $1,645.00.   Such acts, if committed by an adult, would constitute the crimes of Burglary in the Second Degree as defined by § 140.25(2) of the Penal Law and Grand Larceny in the 4th Degree as defined by Penal Law § 155.30(2).

Following a Huntley hearing,1 law guardian Andrew Rothstein, Esq. seeks to suppress certain statements of respondent elicited by Investigator Michael Canali (hereinafter Canali) of the Elmira Police Department (hereinafter EPD) during his interrogation of the respondent on or about February 15, 2006.   Respondent argues that the statements were taken contrary to federal and state constitutional rights and the extension and codification of those safeguards in the Family Court Act.


 Based upon the credible testimony, the Court makes the following findings of fact.   Prior to the alleged burglary and larceny, Smith had ordered respondent to leave his home for an undisclosed reason.   On February 15, 2006, Elmira Free Academy (EFA) school resource officer (SRO) David Holmes (hereinafter Holmes) of the Elmira Police Department contacted Canali.   Holmes informed Canali that respondent, age 14 at the time, was at the school wearing an athletic jersey matching the description of the jerseys previously reported as stolen by Smith.   Canali thereupon requested Holmes to transport respondent to the EPD for the purpose of questioning respondent.   Holmes did so.   Canali was aware of respondent's ejection from Smith's home.   He was also aware at the time that respondent was living with his older sister.   Nevertheless, Canali contacted Smith and informed him of the impending interview and requested that Smith be present as the respondent's legal guardian.2  Smith declined to be present and gave his permission to Canali to interview respondent in his absence.   Canali did not attempt to contact respondent's sister.   Upon the respondent's arrival at the police department, Canali, in plain clothes, took respondent into his 9′ x 9′ office, which is a designated juvenile interviewing room.3  Canali advised respondent of his Miranda4 rights, which respondent ostensibly waived.   Canali then proceeded to interrogate respondent for approximately an hour.   Respondent made self-incriminating statements, both oral and written, surrounding his involvement in the commission of the alleged acts of burglary and theft.   The Court takes judicial notice that February 15, 2006 was not a court holiday.


It is basic that the admissibility of statements to an officer is dependent upon a number of factors.   Those include the voluntariness of those statements, whether they are custodial in nature, whether they are taken in compliance with certain constitutional and statutory rights and whether, if waived, they are so waived knowingly, voluntarily and intelligently.5  These rights and procedures are codified for juveniles in the Family Court Act.6

Family Ct. Act § 305.2(3) requires that when an “officer” 7 takes a child into custody, he shall immediately so notify the parent or person legally responsible for the child's care or, if the person legally responsible is not available, the person with whom the child resides.   The purpose of having a parent or other “person legally responsible” present during a custodial interrogation is twofold:  (1) to help the juvenile respondent understand his or her Miranda rights;  and, if the Miranda rights are waived, (2) to help monitor the interrogation process.   See Matter of Omar L., 192 Misc.2d 519, 524, 748 N.Y.S.2d 209 (N.Y. Family Ct. 2002).   Additionally, the designated adult may provide support and guidance for the juvenile in the above processes.  Matter of James OO, 234 A.D.2d 822, 652 N.Y.S.2d 783 (3rd Dept.1996);  lv. denied 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644 (1997).

 Further, Family Ct. Act § 305.2(7) prohibits the questioning of a juvenile in custody unless the respondent and the person required to be notified under subdivision (3), if present, are advised:  (a) of the juvenile's right to remain silent;  (b) that statements made by the child may be used in a court of law;  (c) that the child has a right to have an attorney present at such questioning;  and (d) that the child has a right to have an attorney provided for him without charge if he is indigent.   Finally, Family Ct. Act § 305.2(8) provides that “in determining the suitability of questioning and determining the reasonable period of time for questioning such a child, the child's age, the presence or absence of his parents or other persons legally responsible for his care and notification pursuant to subdivision three shall be included among relevant considerations.”   The people bear the burden of proving beyond a reasonable doubt compliance with these procedures and of the voluntariness of any statements.  People v. Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318 (1977).


 The Court turns first to whether Canali's interview of this 14 year old respondent is deemed a “custodial” interrogation as contemplated by Family Ct. Act § 305.2 and Miranda.   Hon. Karen K. Peters, when then sitting as Family Court Judge in Ulster County, correctly noted that in determining such an issue, “․ the reasonable perceptions of a child must be judged by a standard which takes into account the emotional and intellectual maturity of the juvenile.”  Matter of Candy M., 142 Misc.2d 718, 538 N.Y.S.2d 143 (Ulster Co. Fam. Ct. 1989), citing other cases.   Additionally, it is well settled that in determining this issue, the court must evaluate the totality of the circumstances.   Here, this Court finds from the credible evidence and from its consideration of all of the “relevant considerations” that the respondent would reasonably have perceived himself to be in custody, as that term has been interpreted by Miranda and its progeny.   These circumstances included respondent's removal from the school setting by an officer, his transportation by the SRO to the police department (with no other way home or to school), his not having an affirmative opportunity to consult with an adult, and, as discussed below, his not having any real, independent parent or parent-substitute to intercede nor with whom to confide or help evaluate his rights.   Moreover, Canali clearly must have thought him in custody as well, as it is he who felt it appropriate and necessary to notify respondent's guardian pursuant to Section 305.2(3) Family Ct. Act.

The Court next examines whether compliance with Family Ct. Act 305.2 is possible when an estranged legal custodian is also the complainant.   Although the potential conflict of the grandfather is not solely determinative of the admissibility of the respondent's statement, it is certainly a strong factor the Court must consider under the totality of circumstances.   See Matter of James OO, at 823, 652 N.Y.S.2d 783, citing People v. Barnes, 124 A.D.2d 973, 508 N.Y.S.2d 818, lv. denied 69 N.Y.2d 743, 512 N.Y.S.2d 1047, 505 N.E.2d 245;  Matter of Stanley C., 116 A.D.2d 209, 500 N.Y.S.2d 445 (4th Dept. 1986), appeal dismissed 70 N.Y.2d 667, 518 N.Y.S.2d 959, 512 N.E.2d 542.

 In examining the attendant circumstances, it is utterly apparent to this Court that the grandfather has (and at the time in question, had) interests totally and inherently averse to those of the respondent.   The instant facts are easily distinguishable from James OO and Omar L. (where, in each case, the mother of both the victim and of the respondent consented to questioning but showed love and concern for the welfare of both children) and People v. Susan H., 124 Misc.2d 341, 477 N.Y.S.2d 550 (Bronx Sup. Ct. 1984) (where the father, unaware he had been an intended victim of his daughter and had conducted himself as a loving parent, consented to the police speaking to his daughter).   Unlike those cases, we have here a legal guardian who is clearly an estranged grandparent who had essentially kicked the respondent out of his home earlier and who has since distanced himself from respondent and these proceedings.   The grandfather could hardly be characterized as a “loving” or “supportive” caretaker at the time of questioning.   As Professor Merril Sobie in his commentaries writes, “[b]y requiring notice to a parent or other person legally responsible for [a] child's care' that a child has been taken into custody, section 305.2 implicitly assumes that the adult notified will act in the juvenile's interest.”   Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 305.2 at page 68.   That assumption is manifestly impossible to make here.

Respondent further argues that due to Smith's dual role as both legal guardian and alleged victim, law enforcement should have sought an alternative custodian who could have offered objective advice and guidance to the respondent.   The Court agrees.   Since respondent was residing with his sister at the time of questioning, some attempt should also have been made to contact her under the circumstances.8


Taken as a whole, then, the respondent was deprived of the contemplated protections of the Family Court Act. These included, of course, his right to the independent parental support and guidance necessary to make an informed decision regarding the waiver of his rights to counsel and against self incrimination.   Under the facts presented, the grandfather's inherent conflict of interest precluded his serving as the designated person contemplated under Section 305.2 of the Family Court Act. The police should have, therefore, either located and notified the sister, or failing that (or, having done so and finding her inappropriate for this purpose), forthwith and with all reasonable speed taken the child to the Family Court to there have a guardian appointed.   See Matter of Candy, at 722, 538 N.Y.S.2d 143.

To quote Sobie, “[t]he message to law enforcement seems clear enough, although it apparently bears repeating:  if a juvenile's parent or other legally responsible adult cannot be reached, or if it appears that their interests will be inconsistent with the juvenile's, questioning must be conducted in accordance with subdivision 305.2(4)(b)” 9 Sobie, at page 68.

Moreover, and independently, given the child's age and the circumstances noted above, this Court also concludes that he did not possess the requisite maturity, guidance or wherewithal to make an informed waiver of his Miranda rights, particularly without the presence of a non-conflicted, “loving parent” described above.  People v. Susan H.

The presentment agency has not met its burden of showing beyond a reasonable doubt that the respondent's statements were made in compliance with the Family Court Act or after a knowing, voluntary and intelligent waiver of his rights thereunder.   Accordingly, it is hereby

ORDERED that the motion to suppress the respondent's oral and written statements is granted.


1.   People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).   It is worthy of note that the grandfather did not accompany the respondent for the hearing nor at other court appearances after the summoned initial appearance of the respondent.

2.   See Family Ct. Act § 305.2(3).

3.   See Family Ct. Act § 305.2(4)(b) and 22 NYCRR § 205.20.

4.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

5.   See generally, e.g. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   Rights afforded adult defendants are generally made applicable to juveniles pursuant to In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

6.   Family Ct. Act § 305.2

7.   “Officer” is defined by Family Ct. Act § 305.2(1) as a peace officer or police officer.

8.   Given the apparent age of his sister from court observation, it is interesting whether she, either, would have been an appropriate “parental advisor” envisioned and prescribed by the Family Court Act.

9.   Section 305.2(4)(b) provides for the taking of he child “forthwith and with all reasonable speed ․ to the family court.”