Opinion
D-21258/10.
Decided December 1, 2010.
Michael A. Cardozo, Corporation Counsel (Danielle M. Boccio of counsel), New York City, for Presentment Agency. The Legal Aid Society (Tamara Steckler and Lisa E. Tuntigian) attorney for respondent.
This juvenile delinquency proceeding is before the Court for a dispositional hearing subsequent to the Court's uncontested determination that the respondent, Natasha G. (born October 15, 1997), has committed acts which, were she an adult, would constitute the crimes of Petit Larceny and Criminal Possession of Stolen Property in the Fifth Degree.
After accepting respondent's admission to two counts of the juvenile delinquency petition the Court scheduled the case for a dispositional hearing. Pursuant to Family Court Act § 351.1 (2) the Court directed that the New York City Department of Probation conduct an investigation into respondent's circumstances and that a written report be submitted at the dispositional hearing which was scheduled for December 1, 2010. The dispositional hearing commenced on December 1, 2010 and the Department of Probation submitted its investigation report ("I R") along with school records concerning the respondent, and victim impact statements which were prepared by the staff of Safe Horizon which is a crime victims advocacy agency (Fam. Ct. Act § 352.1).
The written report of I R prepared by the Department of Probation states that the respondent resides in Jackson Heights along with her mother, stepfather and infant brother. The father of the respondent resides in Spain. According to the report, the incident underlying the juvenile delinquency petition occurred in Queens County on September 16, 2010 when the respondent and one accomplice were involved in the theft of cell phones from two victims. According to the probation report, the respondent stated that "she regrets the instant offense because she did not mean to do it. She stated that it was not her intention to rob the victims. She stated that she ran away because her friend ran. She stated that she learned from this experience not to rob people. She stated that she would like her case dismissed." The report indicated that the respondent has no prior contact with the criminal justice system, although her mother reported that she has twice called the police to the family residence to address problems with her daughter. The first instance occurred when the respondent "went to the kitchen and took a knife to open something she had money in [and] [t]he mother thought the respondent took the knife to harm herself, but didn't." The second incident involved respondent's running away after the mother asked her to perform chores in the residence. Respondent's mother stated that her daughter "took medication" in a suicidal gesture about a year ago and that respondent had been enrolled in therapy a year or two ago and that therapy has stopped because respondent "didn't like" the therapists.
The probation officer's evaluation states that respondent committed the theft by herself, although the delinquency petition clearly states that she acted in concert with another girl. The officer noted that while the respondent and her mother generally have a good relation-ship and respondent gets along with her stepfather, the respondent is sometimes rebellious when given directions by her mother. In addition, while respondent's mother had previously enrolled her in therapy, the treatment stopped apparently because respondent refused to attend further sessions. While respondent appears capable of achieving academically, she has problems with arriving on time and passing certain courses. The probation officer expressed some concern about respondent's behavior in the community, including the possibility of associating with some negative peers and obeying her mother's curfew, and the probation officer's review of respondent's school records reflected that between the date that school commenced on September 8, 2010 and November 22, 2010 the respondent "had 13 absences and 22 lateness. The disciplinary record revealed no suspensions for the 2009-2010 school year. The final marking period grades revealed that respondent passed 8 courses but one with marks ranging from 45-89." Respondent's mother explained that while her daughter was sometimes late getting to school, she only missed school due to physical illness, and she does not cut classes. Respondent told the probation officer that in the first quarter of the 2010-2011 school year, she thinks that she failed Physical Education and Band, that she still has problems with getting to school on time, that she is doing well in her other classes and has not been in trouble at school.
In evaluating all of the evidence, the probation officer concluded that "the respondent could benefit from a brief period of supervision and counseling." However, the recommendation section of the report indicates that the Department of Probation is recommending that respondent be granted an Adjournment in Contemplation of Dismissal, an outcome which does not involve an adjudication of juvenile delinquency nor regular supervision of the juvenile by the probation department ( see, Fam. Ct. Act § 315.3; Matter of Edwin L., 88 NY2d 593, 600).
On November 23, 2010 this Court issued an opinion in a series of juvenile delinquency proceedings in which the Department of Probation had utilized a computer-based mathematical diagnostic device known as the "Probation Assessment Tool" ( Matter of Geraldine A., et al., 2010 NY Slip Op 52033, 2010 WL 4812804). In that prior opinion, the Court discussed the design and structure of the Probation Assessment Tool ("PAT") in detail and expressed its view that the PAT contained an inherent bias in favor of female juvenile delinquents, and that the PAT was apparently designed to reduce the number of juvenile delinquents who might be placed in custody of the Office of Children and Family Services or placed under supervision of the Department of Probation. That objective is achieved by recommending adjournments in contemplation of dismissal or Conditional Discharges for those juveniles believed less likely to engage in further criminal behavior, that is female delinquents between the ages of 12 and 15, and the recommendations are arrived at through the PAT computer program which has an internal system of scoring which favors such juveniles.
In the present case the Court believes that the Department of Probation utilized the PAT computer program to arrive at the final recommendation that respondent be granted an ACD, although the information contained in the probation investigation certainly tends to indicate that she "could benefit from a brief period of supervision and counseling." Accordingly, the Court requested that the Department of Probation immediately provide the Court with a copy of the PAT report for the respondent. The Court was then advised that the Department would not release the PAT report for respondent "without a court order", apparently meaning that the Department would not comply with the Court's valid verbal order.
As requested by the Department of Probation, a separate written order directing that the PAT report for the respondent be produced on December 2, 2010 has been issued. Given the position taken by the Department of Probation, it bears noting that the Court's directive is firmly supported by the decision of the Appellate Division, Second Department in Matter of Jasmine G. ( 35 AD3d 604), in which the Appellate Division found that the Family Court properly directed the Department of Probation to produce materials relating to the PAT at a dispositional hearing ( see, Matter of Jasmine G. , 35 AD3d 606 , 606-607 [subsequent appeal]).
While the Department of Probation may disagree with this Court's directive that it produce the PAT report for this respondent, as well as the orders to produce issued in Matter of Geraldine A., et al., the Department is not free to disregard the order or to compel this Court to reduce its order to a writing. "The doctrine of stare decisis provides that once a court has decided a legal issue, subsequent appeals presenting similar facts should be decided in conformity with the earlier decision. Its purpose is to promote efficiency and provide guidance and consistency in future cases by recognizing that legal questions, once settled, should not be reexamined every time they are presented. The doctrine also rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes" ( People v. Bing, 76 NY2d 331, 338; see also, People v. Hobson, 39 NY2d 479, 487-488; Battle v. State of New York, 257 AD3d 745, 746, lv denied 93 NY2d 805, 806).
The doctrine of stare decisis requires that trial courts follow the precedents of the Appellate Division of the Supreme Court and those of the Court of Appeals ( Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664). While appellate courts have developed standards to determine whether stare decisis should be applied or withheld with respect to a rule of law ( Hobson at 488; Bing at 338), trial courts and litigants are not empowered to decide whether or not to follow precedential decisions. With respect to the issue of whether the Department of Probation must produce the PAT report or PAT materials in a dispositional hearing, the holding in Matter of Jasmine G. is controlling as there is no contrary ruling by the Appellate Division in this department or by the Court of Appeals ( Storms at 664).
A copy of this order shall be provided to the parties and the Department of Probation.