Published on:

While the delay here was unusually long, appellant has not established prejudice based upon a deprivation of his liberty


In this criminal case, appellant, who was 15 years old at the time of the offense, was charged, along with three other youths, with acts which, if committed by an adult, would constitute robbery in the second and third degrees, attempted robbery in the second degree, assault in the second and third degrees, grand larceny in the fourth degree, unlawful imprisonment in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, attempted assault in the third degree, and menacing in the third degree.

A Bronx County Grand Larceny lawyer said that the affidavit of the victim stated that, he was approached by one of the four boys and pulled over to where the other three stood, where one of them threatened him, and then reached into his pocket and took his money. When he asked for his money back, the boy pushed him, causing him to fall to the ground and twist his wrist. All four boys kicked and punched him in the stomach while he was on the ground. His wrist was swollen for three days and sore for seven days.

At a court appearance, appellant and one correspondent appeared before the court, each with his own lawyer and his mother. Appellant’s counsel told the court that his client was willing to admit to the top count, in exchange for the dismissal of a separate accusatory instrument against him on an unrelated charge, and the release of appellant to his mother instead of his being remanded. Appellant’s counsel noted that he had explained to him that he could face 18 months in a juvenile correctional facility.

The Court said that “You’re entitled to a trial in this matter. At the trial, the Corporation Counsel would be required to prove all the allegations in each count of the petition. You would have an opportunity to confront the witnesses against you and have them cross-examined. You would have an opportunity to testify yourself and to call other defense witnesses and to present other defense proof or you could remain silent and not present any proof. The burden would remain on the Corporation Counsel’s office. No adverse inference would be taken against you as a result of your failure to testify. Knowing this, you both wish to admit to Count 1, a C felony in each petition, robbery in the second degree, penal law section 160.10 subdivision 1. This covers two other cases that have been filed which were previously mentioned…. Those cases will be withdrawn but remain unsealed. Both of you will be paroled after your plea. I will order a probation report, a mental health study and an exploration of placement; but for the fact that A.T.D. is filled up, I’d be sending you there. Instead, I’m going to be sending you to summer school.”

After discussion with their lawyers, particularly concerning appellant’s request to be permitted to work rather than attend summer school, and after setting a curfew for the two juveniles, the court continued “As a result of your plea here, there’s a likelihood or a good possibility that you could be placed for up to 18 months and the placement period could be extended after that until your 18th birthday. It’s also possible you could receive probation, a conditional discharge or possibly a dismissal of the cases. It all depends on what I read in the reports and what your behavior is in the future. Do both of you understand what I’ve said.”

Both juveniles, and their parents, indicated that they understood what he had said. The court then proceeded to allocate the juveniles.

Appellant now challenges the sufficiency of his allocution under Family Court Act § 321.3 (1), which provides that: “The court shall not consent to the entry of an admission unless it has advised the respondent of his right to a fact-finding hearing. The court shall also ascertain through allocution of the respondent and his parent … that (a) he committed the act or acts to which he is entering an admission, (b) he is voluntarily waiving his right to a fact-finding hearing, and (c) he is aware of the possible specific dispositional orders. The provisions of this subdivision shall not be waived.”

Appellant asserts that the Family Court failed to (1) elicit specific factual statements from him as to the offense to ensure that he committed the acts for which the admission was being accepted; (2) separate the process of advising him of his trial rights from the process of ascertaining that he understood those rights and was voluntarily waiving them; and (3) properly ensure that he understood the possible consequences of his admission.

He relies upon a jurisprudence, in which this Court reversed a dispositional order issued after a fact-finding hearing. However, that appeal focused on a combination of several serious errors. First, there was no showing of compliance with the requirement of Family Court Act § 741 (a) that a “reasonable and substantial effort” be made to notify the juvenile’s parent before the commencement of the fact-finding hearing, particularly since the hearing was being held the day after the incident, and since in response to the question of whether the girl’s parents were called, the law guardian merely said, “They tried but could not be reached.” Second, the court’s appointment of a court officer as the respondent’s guardian ad litem, to act in loco parentis, was improper. Third, the court failed to ascertain that the 15-year-old girl, in court without any parent or other familiar person, just one day after the incident, understood the nature of the charges or the consequences of the admission when she provided one-word affirmative answers to its questions. Also, importantly, “[t]he Law Guardian’s statement that he advised appellant of the `ramifications’ of her plea … [did] not shed any light on the subject, as the record does not show what he told her”.

The only similarity between the case relied upon and the present case is that appellant here also gave one-word answers in the course of his allocution. Here, appellant’s parent was present, enough time elapsed to ensure that counsel’s representation of him was not rushed, and counsel represented on the record what he told appellant as to the possible ramifications of the plea.

But, other crimes are clearly understood from the simple recitation of the charge, particularly when used in conjunction with the facts of the supporting affidavit. The crime of robbery in the second degree is such a crime. Its elements, when stated in open court as part of an allocution, establish in a clear and concise fashion what it is that the respondent has done wrong. Specifically, appellant was asked if he admitted the crime, he affirmed. There was no uncertainty as to precisely what he was charged with, and what he was admitting to: the conduct of appellant and the other youths, acting together, using force to take personal property from the victim. The use of the term “personal property,” although not a term used in everyday English, was clearly understandable in this context. There is no basis upon which to conclude that appellant could have been unsure of exactly what he was charged with or admitting.

Family Court Act § 321.3 (1) also requires that the record reflect that the juvenile understood the possible consequences of the plea. There was no basis upon which the reviewing Court could conclude, based upon the record, that the juvenile understood this. Here, in contrast, both counsel and the court explained the possible consequences on the record; moreover, appellant’s counsel had had adequate time to review and discuss these possibilities with the juvenile and with his mother.

Appellant’s speedy appeal argument warrant reversal. Although the appellate process must afford due process, “[d]elays do not automatically mandate dismissals; rather, particularly in a post conviction proceeding, it is necessary that the defendant show that he has been prejudiced by the delay”. And, although a delay that would not be prejudicial in an adult appeal might be prejudicial in a juvenile appeal, there is no “per se rule regarding speedy trial violations”.

The factors considered on a speedy appeal claim are similar to those of a constitutional speedy trial claim, and include the extent of the delay, the reason for the delay, the nature of the underlying charge, and whether or not there is any indication that the defense has been impaired by reason of the delay. While the delay here was unusually long, appellant has not established prejudice based upon a deprivation of his liberty. He does not argue that the term of his placement was excessive. In fact, given the negative reports about him in the file and the fact that, subsequent to the two dockets disposed of by his plea, he threatened yet another person with a knife, the six-month extension of his placement was clearly justified.

Accordingly, the order of disposition of the Family Court, Bronx County, which adjudicated appellant a juvenile delinquent, upon his admission that he committed acts which, if committed by an adult, would constitute the crime of robbery in the second degree, and placed him in a limited secure facility for a period of 18 months, should be affirmed, without costs.

Juvenile delinquents should be guided and be counseled for the offenses they have committed. Here in Stephen Bilkis and associates, our Bronx County Criminal attorneys render advice to these youth offenders, so as to help them realize what they have done and at the same time, protect them from harm. Call us now and consult your legal problems to us.

Posted in:
Published on:

Comments are closed.

Contact Information