IN RE: Docket Number D-16836/10 KAMINSKI G.

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Family Court, Queens County, New York.

IN RE: Docket Number D-16836/10 KAMINSKI G., A Person Alleged to be a Juvenile Delinquent, Respondent.

Decided: September 02, 2010

Michael A. Cardozo, Corporation Counsel (Latoya S. Jeffers of counsel), New York City, for Presentment Agency. Nadeen Gayle, Brooklyn, attorney for respondent.

By petition filed pursuant to Family Court Act § 310.1 on September 1, 2010 the respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Attempted Robbery in the First Degree, Robbery in the Second Degree, Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, Criminal Possession of a Weapon in the Fourth Degree, and Menacing in the Second Degree. The Court conducted the initial appearance upon the petition, counsel was appointed for the respondent, and the Court directed that respondent be detained by the New York City Department of Juvenile Justice until the next court day for further proceedings.

The juvenile delinquency petition, including its sole supporting deposition, reflects that the charges set forth in this petition arose out of an incident which is alleged to have occurred in Queens County on August 3, 2010 during which it is claimed that the respondent, who is 14 years old, and two unknown accomplices forcibly stole property which included a wallet, an I-Pod touch, an Amazon Kindle, car keys, and a motor vehicle from the victim.   The petition specifically alleges that the respondent possessed, used or threatened the immediate use of a dangerous instrument, a baseball bat, in order to effectuate the forcible taking of property.

The non-hearsay factual allegations in the victim's supporting deposition establish, if true, that the respondent committed acts which, were he an adult, would constitute the completed crimes of Robbery in the First Degree (P.L. § 160.15[3] ), Robbery in the Second Degree (P.L. § 160.10[1] ), Grand Larceny in the Fourth Degree (P.L. § 155.30[5] ), Criminal Possession of Stolen Property in the Fifth Degree (P.L. § 165.40), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[2] ), and Menacing in the Second Degree (P.L. § 120.14[1] ).

Family Court Act § 315.1 provides for the dismissal of jurisdictionally defective juvenile delinquency petitions (see, Matter of David T., 75 N.Y.2d 927, 928, 555 N.Y.S.2d 675, 554 N.E.2d 1263;  Matter of Detrece H., 78 N.Y.2d 107, 109-110, 571 N.Y.S.2d 899, 575 N.E.2d 385;  Matter of Jahron S., 79 N.Y.2d 632, 640, 584 N.Y.S.2d 748, 595 N.E.2d 823;  Matter of Edward B., 80 N.Y.2d 458, 460, 591 N.Y.S.2d 962, 606 N.E.2d 1353;  Matter of Neftali D., 85 N.Y.2d 631, 634, 628 N.Y.S.2d 1, 651 N.E.2d 869).   Insofar as relevant, this section of the statute reads as follows:

1.  A petition of a count thereof is defective when:

(a) it does not substantially conform to the requirements stated in sections 311.1 and 311.2 ․

(b) the allegations demonstrate that the court does not have jurisdiction over the crime charged (italics added);  or

(c) the statute defining the crime is unconstitutional or otherwise invalid.

2. An order dismissing a petition as defective may be issued upon the motion of the respondent or of the court itself.

 In this case, the non-hearsay factual allegations in the victim's supporting deposition establish, if true, that the respondent and his two accomplices forcibly stole property from the victim and that during the commission of the crime respondent used or threatened the immediate use of a dangerous instrument (a baseball bat) in order to effectuate the forcible taking of the victim's property (see generally, People v. Miller, 87 N.Y.2d 211, 214-215, 638 N.Y.S.2d 577, 661 N.E.2d 1358;  People v. Fullan, 92 N.Y.2d 690, 692, 685 N.Y.S.2d 901, 708 N.E.2d 974).   The accusatory portion of the juvenile delinquency petition (i.e., the verified petition) charges respondent with the commission of 5 completed crimes including Robbery in the Second Degree, Grand Larceny in the Fourth Degree and Menacing in the Second Degree, and in the sixth count respondent is also charged with having committed an act which would constitute the crime of Attempted Robbery in the First Degree.

 Given the factual allegations in the supporting deposition, the charge of Attempted Robbery in the First Degree appears to be inconsistent with the counts charging the completed acts of Robbery in the Second Degree, Grand Larceny in the Fourth Degree and Menacing in the Second Degree.   While a prosecutor is authorized to determine who and what to prosecute as well as the specific crimes with which a defendant will be charged (People v. Zimmer, 51 N.Y.2d 390, 395, 434 N.Y.S.2d 206, 414 N.E.2d 705;  Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 52, 467 N.Y.S.2d 182, 454 N.E.2d 522;  Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 573, 528 N.Y.S.2d 21, 523 N.E.2d 297;  People v. Harper, 75 N.Y.2d 313, 318, 552 N.Y.S.2d 900, 552 N.E.2d 148), the prosecutor cannot draft an accusatory instrument in order to evade limitations placed upon the subject matter jurisdiction of a court.

 The Family Court is vested with “exclusive original jurisdiction” over juvenile delinquency proceedings (N.Y. Const., art. VI, § 13;  Fam. Ct. Act §§ 114, 115[a][vi] ), however the Family Court is nevertheless a court of limited jurisdiction (Kleila v. Kleila, 50 N.Y.2d 277, 282, 428 N.Y.S.2d 896, 406 N.E.2d 753;  Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258;  Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471;  Matter of H.M. v. E.T., 14 N.Y.3d 521, 526, 904 N.Y.S.2d 285, 930 N.E.2d 206;  Matter of Leonora M. v. Krauskopf, 104 A.D.2d 755, 756, 480 N.Y.S.2d 479;  Matter of Brian L. v. Administration for Children's Services, 51 A.D.3d 488, 500, 859 N.Y.S.2d 8, lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198;  Matter of John M.S. v. Bonni L.R., 49 A.D.3d 1235, 854 N.Y.S.2d 259;  King v. State Education Department, 182 F.3d 162, 163 [2d Cir.1999] ).   The Legislature has clearly defined the scope of the Family Court's jurisdiction over juvenile delinquents who are defined as “a person over seven and less than sixteen years of age, who, having committed an act that would constitute a crime if committed by an adult, (a) is not criminally responsible for such conduct by reason of infancy, or (b) is the defendant in an action ordered removed from a criminal court pursuant to article seven hundred twenty-five of the criminal procedure law” (Fam. Ct. Act § 301.2[1] ).

“Prior to September 1, 1978, children under the age of 16 were not subject to criminal sanctions in New York in any circumstances.   Instead, juveniles who performed acts which would have been crimes had they been committed by adults, were all dealt with through a separate juvenile delinquency system” (Matter of Vega v. Bell, 47 N.Y.2d 543, 547, 419 N.Y.S.2d 454, 393 N.E.2d 450;  see, e.g., People v. Lewis, 260 N.Y. 171, 183 N.E. 353).   However in 1978 “in reaction to a perceived epidemic of violent criminal conduct by juveniles ․ the Legislature criminalized' several serious acts committed by thirteen-, fourteen-, and fifteen-year-old youths” (Matter of Raymond G., 93 N.Y.2d 531, 534-535, 693 N.Y.S.2d 482, 715 N.E.2d 486 [citation omitted] ).   As a result of the 1978 statutory amendments “juveniles between the ages of 13 and 15 who are charged with certain enumerated, serious crimes of violence are now classified as juvenile offenders' and are prosecuted within the adult criminal justice system” (Vega at 547, 419 N.Y.S.2d 454, 393 N.E.2d 450;  see, Matter of Equcon M., 291 A.D.2d 332, 737 N.Y.S.2d 622;  United States v. Smith, 376 Fed.Appx. 140, 142-143 [2d Cir., 2010] ).

The 1978 legislation deprived certain offenders of the defense of infancy and classified these offenders as “juvenile offenders” who are subject to criminal prosecution for the commission of any crimes enumerated by statute (Penal Law §§ 10.00[18];  30.00[2];  Criminal Procedure Law § 1.20[42] ).1  As observed in Matter of Raymond G., the 1978 statutory amendments “criminaliz[ed] certain juvenile offenses through divestiture of Family Court original jurisdiction ․ by recasting the Family Court Act definition of juvenile delinquent to exclude them, while at the same time making correlative revisions to the Penal Law to render juvenile offenders subject to criminal prosecution” (Raymond G. at 535, 693 N.Y.S.2d 482, 715 N.E.2d 486;  see, People v. Killeen, 198 A.D.2d 233, 603 N.Y.S.2d 510, lv. denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488).   In addition to creating the status of juvenile offender, the 1978 legislation created a process under which criminal charges filed against a juvenile offender could be “removed” to the Family Court at various stages of a criminal prosecution (Criminal Procedure Law § 725.00-§ 725.20;  Matter of Desmond J., 93 N.Y.2d 949, 694 N.Y.S.2d 338, 716 N.E.2d 173;  Matter of Michael M., 3 N.Y.3d 441, 788 N.Y.S.2d 299, 821 N.E.2d 537;  Matter of Kemar G., 72 A.D.3d 965, 898 N.Y.S.2d 518, lv. denied 15 N.Y.3d 704, 2010 N.Y. Slip Op. 80944, 2010 WL 3397058 [August 30, 2010] ).   Thus, under the present statutory regime, a person 13, 14 or 14 years old who commits one of the acts denominated as a “juvenile offense” is “now automatically prosecuted within the adult criminal justice system unless there exist special circumstances warranting more lenient treatment and transfer to the Family Court” (Vega at 551, 419 N.Y.S.2d 454, 393 N.E.2d 450).

 When presented with a question of statutory interpretation a court's primary consideration is to ascertain and to give effect to the intention of the Legislature (Matter of DaimlerChrysler Corporation v. Spitzer, 7 N.Y.3d 653, 660, 827 N.Y.S.2d 88, 860 N.E.2d 705;  People v. Ballman, 15 N.Y.3d 68, 72, 904 N.Y.S.2d 361, 930 N.E.2d 282;  Yellow Book of New York, Inc. v. Commissioner of Taxation and Finance, 75 A.D.3d 931, 906 N.Y.S.2d 386), and in both Vega v. Bell and Matter of Raymond G., the Court found that the 1978 statutory amendments enacted by the Legislature were intended to divest the Family Court of original jurisdiction over persons 13, 14 or 15 years of age who committed an act which was defined as a juvenile offense and to which the defense of infancy could not be asserted (Raymond G. at 536, 693 N.Y.S.2d 482, 715 N.E.2d 486;  Vega at 551, 419 N.Y.S.2d 454, 393 N.E.2d 450).   In such cases Family Court has no jurisdiction unless the criminal action is removed to the Family Court in accordance with the provisions of article 725 of the Criminal Procedure Law (Raymond G. at 535, 693 N.Y.S.2d 482, 715 N.E.2d 486).

In Matter of Travis Y., 27 Misc.3d 557, 896 N.Y.S.2d 638, this Court concluded that it was impermissible for a presentment agency to file a juvenile delinquency petition against a 14-year-old male charging only acts which are not defined as juvenile offenses where the non-hearsay factual allegations in the victim's supporting deposition established, if true, that the perpetrator committed the crime of Rape in the First Degree, which is a juvenile offense and for which the defense of infancy was unavailable.   The Court found that since the petition, which includes the victim's supporting deposition (Jahron S. at 638-639, 584 N.Y.S.2d 748, 595 N.E.2d 823), established the commission of the juvenile offense of Rape in the First Degree, the Family Court could not exercise its juvenile delinquency jurisdiction until such time as an order removing the charges relating to the incident was issued by a criminal court in accordance with the Criminal Procedure Law (Travis Y. at 563, 896 N.Y.S.2d 638). in dismissing the petition in Travis Y. the Court concluded that although the petition did not charge a crime which is defined as a juvenile offense, the petition as a whole established the commission of a juvenile offense, and there could be no exercise of the court's juvenile delinquency jurisdiction absent a removal from a criminal court.   The 1978 legislation altered the original subject matter jurisdiction of the Family Court, and the presentment agency could not confer original jurisdiction back to the Family Court by simply omitting the juvenile offense charge made out by its own petition (id. at 562-563, 896 N.Y.S.2d 638).

This case presents a slightly different scenario to the extent that while the petition as a whole contains non-hearsay factual allegations which, if true, establish the commission of the crime of Robbery in the First Degree, a juvenile offense, the presentment agency has only charged the respondent with an attempt to commit that crime which is not a juvenile offense.2  Nevertheless, because the 1978 legislation altered the original jurisdiction of the Family Court dismissal of the petition is required.   To hold otherwise would permit the presentment agency to circumvent the legislatively imposed restrictions upon the original jurisdiction of the Family Court,3 and it would impermissibly permit a litigant to confer subject matter jurisdiction upon a court which is not vested with original jurisdiction over the proceeding (Cuomo v. Long Island Lighting Company, 71 N.Y.2d 349, 351, 525 N.Y.S.2d 828, 520 N.E.2d 546;  Morrison v. Budget Rent A Car Systems, 230 A.D.2d 253, 260, 657 N.Y.S.2d 721, County of Monroe v. City of Rochester, 39 A.D.3d 1272, 1273, 834 N.Y.S.2d 817, Burke v. Aspland, 56 A.D.3d 1001, 1003, 867 N.Y.S.2d 759, lv. denied 12 N.Y.3d 709, 881 N.Y.S.2d 18, 908 N.E.2d 926).

Accordingly, the petition filed on September 1, 2010 is dismissed pursuant to Family Court Act § 315.1(1)(b).

This constitutes the decision and order of the Court.

FOOTNOTES

1.   A “juvenile offender” who may not invoke the defense of infancy and who is subject to criminal prosecution is ether:  (1) a person thirteen years old who is criminally responsible for acts constituting murder in the second degree or murder in the second degree as a sexually motivated felony;  or (2) a person fourteen or fifteen years old who is criminally responsible for acts constituting murder in the second degree, felony murder where the underlying crime is one for which such person is criminally responsible, kidnapping in the first degree, arson in the first and second degrees, assault in the first degree, manslaughter in the first degree, rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, burglary in the first and second degrees, robbery in the first degree, robbery in the second degree under subdivision two of Penal Law § 160.10, criminal possession of a weapon in the second degree where a machine-gun or loaded firearm is possessed on school grounds, attempted murder in the second degree, attempted kidnapping in the first degree, or the commission of any of the enumerated crimes as a sexually motivated felony defined by Penal Law § 130.91 (Penal Law §§ 10.00[19];  30.00[2] ).

2.   In Matter of Raymond G. the presentment agency filed an original juvenile delinquency petition charging the commission of a juvenile offense with the Family Court.   In Matter of Travis Y. the presentment agency filed an original juvenile delinquency petition which established that a juvenile offense was committed but the petition did not charge the juvenile offense.

3.   The term “original jurisdiction” refers to the tribunal in which a particular type of action or proceeding must be originated (People v. Nuernberger, 25 N.Y.2d 179, 182, 303 N.Y.S.2d 74, 250 N.E.2d 352).   While another court may subsequently acquire jurisdiction over the action or proceeding in accordance with law, the phrase “original jurisdiction” is synonymous with subject matter jurisdiction with respect to determining whether a particular tribunal is empowered by Constitution or statute to entertain a particular action or proceeding at its inception (see, Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578;  Matter of Ballard v. HSBC Bank USA, 6 N.Y.3d 658, 663, 815 N.Y.S.2d 915, 848 N.E.2d 1292).

JOHN M. HUNT, J.