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Family Court’s order of disposition

In this criminal case, respondent is alleged to have committed acts which, were he an adult, would constitute the crimes of Escape in the First Degree, Escape in the Second Degree, and Escape in the Third Degree. The petition alleges that by order of the Family Court, Bronx County, respondent was adjudicated a juvenile delinquent, and placed in the custody of the New York State Division for Youth for a period of up to eighteen months upon the court’s finding that he had committed a felony. In accordance with the Family Court’s order of disposition, the Division for Youth placed the respondent with the Berkshire Farm 2 facility for a period of up to six months.

A Bronx County Criminal lawyer said that the petition further alleges that while respondent was placed with the Division for Youth and in the custody of Berkshire Farm, he was transported to the New York County Family Court by Berkshire Farm staff members, in accordance with a court order, so that he could be present for an initial appearance upon a juvenile delinquency petition, arising out of an incident which occurred in July 1996, where it is alleged that respondent committed acts which would constitute, inter alia, Grand larceny in the Fourth Degree, a class E felony.

According to a supporting deposition of an employee of Berkshire Farm, he and other staff members arrived at the New York County Family Court building in the morning. Shortly after their arrival, respondent requested breakfast and was escorted from the building to a sidewalk vendor who was located in front of the courthouse. Then the employee and the respondent reentered the courthouse and stood side by side as they waited on line to enter the metal detectors.

Following respondent’s return to the custody of Berkshire Farm, this petition charging him with escape was filed. Respondent has moved for dismissal of the four escape counts on the ground that the counts are jurisdictionally defective, and that the allegations in the petition demonstrate that the Family Court does not have jurisdiction over the escape charges. Respondent contends that Berkshire Farm is not a “detention facility” within the meaning of Penal Law § 205.00(1); that he has never been charged with or convicted of a felony, nor has he been arrested for, charged with, or convicted of, a class C, D or E felony. Respondent further alleges that he did not escape from “custody”, as that term is defined by Penal Law § 205.00(2).

The Presentment Agency contends that because respondent was placed in the custody of the Division for Youth, his escape from the control of the staff members from Berkshire Farm at the Family Court building was both an escape from a “detention facility”, as well as an escape from “custody”. The Presentment Agency further states that respondent’s appearance at the New York County Family Court, was in connection with a charge for a class E felony arising out of the incident.

The issue to be resolved in this case is whether respondent may be adjudicated as juvenile delinquent.

The court held that, a person may be adjudicated a juvenile delinquent where it is determined that he or she has committed an act which, were it committed by an adult, would constitute a crime. However, certain offenses 4 defined by the Penal Law are expressly excluded from the Family Court’s juvenile delinquency jurisdiction, and other offenses, although crimes 5, are excluded by the nature of the crime and its constituent elements.

The question therefore, is whether the Legislature has intended that any of the grades of the crime of escape apply to persons like respondent, who are alleged to be or have been adjudicated juvenile delinquents. If it appears that one or more of the escape crimes applies to such juveniles, it must be determined whether each count sets forth a prima facie case of respondent’s commission of that crime.

In order for each count of a juvenile delinquency petition to meet the test of jurisdictional sufficiency, there must be nonhearsay allegations that establish, if true, every element of the offense charged and the respondent’s commission of the offense.

The rationale for the statutory requirement that the petition and each of its counts set forth a prima facie case is to “assure that there exists a sound and supportable basis for subjecting the accused to a trial”, given that there is no independent review of the evidence prior to the filing of the juvenile delinquency petition.

Under the facts of this case, as alleged in the petition, the Presentment Agency cannot establish that respondent committed an act which, were he an adult, would constitute the crime of Escape in the First Degree. Moreover, the elements of this crime indicate that it is inapplicable to juvenile delinquents.

Insofar as relevant, Penal Law § 205.15 provides: A person is guilty of escape in the first degree when: 1. Having been charged with or convicted of a felony, he escapes from a detention facility. The crime of Escape in the First Degree under Penal Law § 205.15(1) is comprised of two elements: (i) that the accused have been charged with or convicted of a felony, and (ii) that the accused escape from a detention facility. The first element, which is a necessary predicate for the second element, cannot be established by the Presentment Agency in this proceeding.

Respondent’s prior adjudication as a juvenile delinquent by the Bronx County Family Court does not constitute a “conviction” for a felony, although he was found to have committed acts which would have constituted a felony but for his age. Moreover, although respondent was being produced at the New York County Family Court in connection with a juvenile delinquency petition which contained an allegation that he committed an act which would, but for his age, constitute a felony, because juvenile delinquents are not “charged” with felonies, but rather are alleged to have committed acts which were they an adult, would constitute a felony, there can be no finding that respondent was “charged with a felony” on the date he allegedly escaped.

Therefore, because Count One is jurisdictionally defective, and because it is clear that the Legislature has not intended that the crime of Escape in the First Degree under Penal Law § 205.15(1) apply to juvenile delinquents, that count is dismissed.

Count Two of the petition alleges that respondent has committed an act which, were it committed by an adult, would constitute the crime of Escape in the Second Degree under Penal Law § 205.10(1), which reads, insofar as pertinent: A person is guilty of escape in the second degree when: 1. He escapes from a detention facility.

This crime is committed by escaping from a detention facility. “Escape” means to get away, break away, or get free, and the crime is completed when the actor escapes from a “detention facility”, which is defined, inter alia, as “any place used for the confinement, pursuant to an order of a court, of a person * * * (b) charged with being or adjudicated a youthful offender, person in need of supervision or juvenile delinquent”.

Here, respondent was adjudicated a juvenile delinquent and placed with the Division for Youth for placement with Berkshire Farm for a minimum period of six months. By definition, Berkshire Farm is a place used for the confinement of adjudicated juvenile delinquents. Berkshire Farm is a “nonsecure” facility, inasmuch as it is a facility used for the placement of both juvenile delinquents and persons in need of supervision. With respect to the crime of escape, courts have consistently held that escape from a nonsecure facility does not constitute escape from a detention facility. Thus, it is not clear that the Legislature intended that the crime of Escape in the Second Degree under Penal Law § 205.10(1) apply to alleged or adjudicated juvenile delinquents placed in nonsecure facilities.

Additionally, because there are no factual allegations establishing that respondent actually escaped from the Berkshire Farm facility, Count Two is jurisdictionally defective. The lobby of the Family Court building is not part of the Berkshire Farm facility.

Accordingly, Count Two is dismissed as jurisdictionally defective and because it is not clear that the Legislature intended the crime of Escape in the Second Degree under Penal Law § 205.10(1) apply to juvenile delinquents. Count Three of the petition alleges that respondent committed an act which, were he an adult, would constitute the crime of Escape in the Second Degree under Penal Law § 205.10(2), which reads, insofar as pertinent:

A person is guilty of escape in the second degree when: Having been arrested for, charged with or convicted of a class C, class D or class E felony, he escapes from custody.

This crime is comprised of two elements, the first of which is a necessary predicate for the second. Although the respondent was adjudicated a juvenile delinquent by the Bronx County Family Court by reason of his commission of acts which, but for his age, would constitute two class E felonies, it cannot be established that respondent was ever convicted of those felonies.

In addition, although respondent was arrested for, and a juvenile delinquency petition filed alleging, the commission of a class E felony in July 1996, respondent was not actually arrested for the commission of that felony, which he could not be held responsible for by reason of his infancy, nor did the petition allege that respondent committed the felony of Grand larceny in the Fourth Degree. Rather, respondent was arrested, and a petition filed, based upon an allegation of juvenile delinquency.

Therefore, because Count Three is jurisdictionally defective, and because it does not appear that the Legislature intended that the crime of Escape in the Second Degree under Penal Law § 205.10(2) apply to juvenile delinquents, the count is dismissed. Count Four of the petition alleges that respondent committed an act which, were he an adult, would constitute the crime of Escape in the Third Degree under Penal Law § 205.05, which reads: A person is guilty of escape in the third degree when he escapes from custody. Penal Law § 205.00(2) defines “custody” as “restraint by a public servant pursuant to an authorized arrest or an order of a court.” On October 9, 1996, while respondent was placed with the Division for Youth he was in the custody of Berkshire Farm pursuant to Family Court’s order of disposition. Thus, there are no allegations which establish that respondent escaped from restraint by a public servant on that date. There is no indication that the employees of Berkshire Farm are public servants within the meaning of Penal Law § 10.00(15) 7, or that they are employees or agents of the Division for Youth.

While an alleged or adjudicated juvenile delinquent may be subjected to juvenile delinquency proceedings based upon an allegation that he or she committed an act which would constitute Escape in the Third Degree, in this case, there are no factual allegations supporting that offense. Therefore, Count Four is dismissed as jurisdictionally defective. In light of the above, the petition is dismissed for the reasons stated herein.

Parents should be responsible for the upbringing of a child. Juvenile delinquents should be prosecuted properly to avoid abuses. Here in Stephen Bilkis and Associates, our Bronx County criminal attorneys are always ready to serve our clients who are in need. Call us now for a proper and competent advice.

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