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Is the defendant a juvenile


In this criminal law case, a petition was filed against respondent alleging that he is a juvenile delinquent as defined by Family Court. According to the petition, the respondent committed acts which were he an adult would constitute the crime of Criminal Possession of a Weapon in the Fourth Degree, Criminal Mischief in the Fourth Degree, and Reckless Endangerment in the Second Degree. In addition, the petition alleged that he violated Penal Law which makes illegal the possession of certain weapons by a person less than 16 years of age.

Respondent first appeared before the Court in April 2010 and he was released to the custody of his mother at the conclusion of the initial appearance. In connection with respondent’s release to his mother, the Court directed that respondent attend an “alternative to detention program” and that he observe a 6:00 P.M. curfew. Thereafter, the Presentment Agency (i.e., the prosecutor) filed an application to remove respondent from the alternatives to detention program because he had been arrested for Attempted Burglary in the Second Degree, he had missed 40 days of school during the 2009-2010 school year, and had been suspended from school twice in 2009. A judge of the court modified the order and directed that the respondent be detained by the New York City Department of Juvenile Justice pending further proceedings upon the petition.

A rep said that, respondent was found to be a juvenile delinquent by the Family Court, and who was thereafter placed under the supervision of the New York City Department of Probation. He was placed on probation under specific conditions which included participation in a community based “alternative to placement” program for adjudicated juvenile delinquents administered by the New York City Administration for Children’s Services (“ACS”). This community based “alternative to placement” program, known as the “Juvenile Justice Initiative” (“JJI”), was created to provide services to adjudicated juvenile delinquents who might otherwise have been placed in an institutional setting based, in part, upon recommendations provided made to the Family Court by the New York City Department of Probation and a Psychologist on the staff of the Family Court Mental Health Services Clinic.

Sadly, during the period in which he was placed under probation supervision, he was repeatedly arrested and subsequently indicted for the commission of violent criminal acts.

As a result of these arrests, the probation imposed by the Family Court has been revoked and respondent has been placed in the custody of the New York State Office of Children and Family Services. At the present time, he is being held on Riker’s Island awaiting the resolution of the criminal charges filed against him.

In Queens County, he has been indicted for violating criminal law by committing the crimes of Murder in the Second Degree as a Hate Crime, Murder in the Second Degree, felony Murder, Manslaughter in the First Degree as a Hate Crime, Manslaughter in the First Degree, Robbery in the First and Second Degrees as Hate Crimes, Robbery in the First and Second Degrees, Gang Assault in the First Degree, Assault in the First Degree as a Hate Crime, Assault in the First Degree, Menacing in the Second Degree as a Hate Crime, Menacing, Criminal Possession of a Weapon, and Criminal Possession of Stolen Property.

While the JJI program was created in response to perceived and actual deficiencies in New York’s juvenile justice system, and with the laudable goal of reducing the institutional placement of juvenile delinquents, this case suggests that the use of community based alternative to placement programs should proceed with caution, as the use of these programs can threaten the very safety of those communities. Community based alternative to placement programs undoubtedly have a place in the juvenile justice system, and the Legislature may consider proposals to amend the juvenile delinquency statutes during its current session, as urged by public officials and interested organizations. However, these programs must be implemented in such a way as to minimize the risk that juveniles who remain in the community will continue to engage in escalating criminal or delinquent activity which threatens the safety of the public.

The issue to be resolved in this case is whether respondent is a juvenile delinquent.

The Court ruled that a juvenile delinquent is a minor between the ages of 7 and 16 who commits one or more acts which, if committed by an adult, would constitute a misdemeanor or a felony violating criminal law. Juvenile delinquency proceedings are commenced under article 3 of the Family Court Act. The purpose of the juvenile delinquency statute is set forth in Family Court Act §301.1 which provides: The purpose of this article is to establish procedures in accordance with due process of law (a) to determine whether a person is a juvenile delinquent and (b) to issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent. In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community.

Prior to the enactment of the Family Court Act in 1962, juvenile delinquency proceedings were brought primarily in the Children’s Court. Where proceedings were commenced in that forum, the concept of crime and punishment disappears. To the child delinquent through the commission of an act criminal in nature, the State extends the same aid, care and training which it had long given to the child who was merely incorrigible, neglected, abandoned, destitute or physically handicapped. All suggestion and taint of criminality was intended to be and has been done away with. Because the Children’s Court was designed to serve a social purpose, there was no need for the procedural due process required in criminal prosecutions.

In this case as in all juvenile delinquency proceedings, the Court proceeded to determine the order of disposition which should be entered. Family Court Act §352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility, and, in the case of a juvenile delinquent who has committed a designated felony, restrictive placement pursuant to Family Court Act §353.5.

In entering an appropriate order of disposition, the Family Court is guided by the statute, which provides that: In determining an appropriate order the court shall consider the needs and best interests of the respondent as well as the need for protection of the community. If the respondent has committed a designated felony act the court shall determine the appropriate disposition in accord with section 353.5. In all other cases the court shall order the least restrictive available alternative enumerated in subdivision one which is consistent with the needs and best interests of the respondent and the need for protection of the community. The juvenile delinquency statute expresses no preference for any particular outcome, and the Family Court is vested with broad discretion in entering the appropriate order of disposition.

With the exception of those cases where the juvenile has been found to have committed a designated felony act in violation of criminal law, in which instance the Family Court may impose a restrictive placement with a minimum time period for the placement, the court is required to utilize the least restrictive dispositional alternative which is consistent with the respondent’s needs and the need for protection of the community.

In conducting its analysis, the court must consider and balance both the needs and best interests of the respondent as well as the need for the protection of the community. While not specifically mentioned in the statute, the Court may also consider the seriousness of respondent’s offenses, the impact upon the victims, the need to protect the community, as well as the need to deter the respondent from further criminal behavior. While the statute requires that the “least restrictive alternative” analysis be utilized, that does not require that less restrictive alternatives actually be tried and fail before more restrictive alternatives can be imposed. Rather, the Court must balance the needs and best interests of the juvenile and the need to protect the community when determining what order of disposition is most appropriate. Although the Court is granted discretion to impose an order of disposition, that discretion is not limitless. Orders of disposition are appealable as of right, and where it is determined that the order of disposition is inappropriate, an appellate court will not hesitate to vacate or modify the Family Court order.

It was under this statutory framework that the Court proceeded to a dispositional hearing in this case in order to determine what order of disposition met the needs and best interests of the respondent, as well as the need to protect the community.

The dispositional hearing was a complicated affair. The probation officer who conducted the investigation and prepared the report for the Court, found that respondent is a high risk for community-based services and he recommended that respondent be placed away from home based upon his needs, the functioning of his family, and the risk that he posed to the safety of the community. The psychologist who conducted the diagnostic assessment of respondent reported that he had significant developmental delays and impaired cognitive functioning. She found that respondent suffered from anger issues, which he medicated by marijuana possession and its use, that he was not actively involved at school and regularly truant, and that respondent’s “judgment impressed as seriously impaired.” According to the doctor the respondent’s poor judgment, limited insight, and impulsivity are risky to himself and the community”, and she therefore recommended that respondent be placed in an institutional setting with close supervision.

The circumstances of this juvenile delinquency proceeding serves as a warning that alternative to placement programs for adjudicated juvenile delinquents must be strictly monitored by responsible public officers. Probation is a governmental function and it cannot be delegated to private entities like CCNY, and there is simply no authority to allow such programs to function as a de facto “alternatives to probation” department supervision.

This Court ordered that respondent be supervised by the Department of Probation and that he observe specific conditions while under probation supervision, including that he participate in the services offered by JJI/MST. Nothing presented to the Court at the original dispositional hearing in this case even remotely suggested that the JJI service providers employed by a non-governmental agency would, in large measure, assume responsibility for the day-to-day supervision of the respondent, thereby reducing the normal supervision and scrutiny provided by trained professional probation officers. While the Court is now aware of the agreements and protocols entered into by the Department of Probation, the Administration for Children’s

Services, and the Legal Aid Society, nothing in the Court’s order authorized the Department of Probation to defer the filing of a violation petition in this case, and nothing in the Court’s order prevented the Department of Probation from filing a violation of probation petition much sooner than it did. The system in which JJI operates is a creation of policy makers, having its own internal rules which govern the respective roles of the probation department and the JJI/MST service providers. The Court was unaware of these internal administrative rules and procedures at the time respondent was placed on probation, and it was not until the post-violation proceedings that the Court learned that there was a separate system of rules and procedures which apply to probation cases involving JJI/MST.

In order to achieve these goals, JJI represented that the MST service provider would develop a “family service plan” that would “focus on increased overall supervision at home school and community behavior, with closer monitoring of respondent’s access to peers not approved by his parents, holding respondent accountable for inappropriate behaviors, substance usage and invoking age appropriate consequences for non-compliance. Therapeutic intervention for respondent’s mother and her family will also focus on family and individual social skill development; linkage with appropriate educational opportunities that better meets respondent’s academic needs, psycho-educational instruction for caregivers focusing on achievable expectations and ongoing need for increased monitoring and supervision for respondent that will foster sustained on-going residency within the community”.

In closing, ACS JJI stated that Respondent’s mother will be setting treatment goals and collaborating with the MST Therapist assigned to the family, but the family as a whole, and will also empower them to appropriately supervise and monitor respondent when MST treatment ends. It is for this reason that the Court strongly believe that respondent and his family can benefit from JJI services. Notably, the JJI acceptance letter submitted by the Administration for Children’s Services did not mention that in December 2001 a judge of the Kings County Family Court found that the children had been neglected by their mother. It is unclear whether the Juvenile Justice branch of ACS knew of these aged child protective proceedings, but the JJI personnel at ACS and the Court did not consider that as a factor in reaching the determination as to whether respondent and his family were best served by his enrollment in the JJI/MST program. In the future, the ACS JJI staff should ensure that it undertakes a thorough review of ACS records to ascertain prior family involvement with the judicial system or with ACS in non-court situations, so that such information, if it exists, can be properly considered by those charged with making these decisions.

Juvenile delinquency is a persistent social problem and despite all the various reforms instituted by well-intentioned policy makers over the past century, no cure has been found for the “social disease” which some people believe juvenile delinquency to be. Innocent people are hurt and maimed when the utilization of community-based solutions are given a nearly absolute priority over the safety of the community. As this case amply demonstrates, the best interests of the juvenile are not always served by returning him or her back to the community with probation supervision and a direction that the juvenile participate in a nebulous therapeutic program.

Here innocent people were seriously injured and a young man lost his life one year ago. This should not have happened, and it would not have happened, had a violation of probation petition been filed when respondent’s substantial non-compliance with the conditions of probation first became evident. For reasons which elude comprehension, the filing of a violation petition was treated as a last resort and was not done until the futile efforts at therapy were exhausted.

The youngsters of today should be the leaders of tomorrow, they should be guided accordingly and properly to avoid them from committing criminal acts. Here in Stephen Bilkis and Associates, or Queens County Criminal Lawyers helps and protects the youthful offenders, enforce their rights, and give them pieces of fatherly advice.

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