Opinion
Docket No. E-4132-22
07-20-2023
In the Matter of Desire S. A Person Alleged to be a Juvenile Delinquent, Respondent.
Patricia Holian, Esq. Christina Oddo, Esq. Corporation Counsel Attorneys for the Presentment Agency Brian Zimmerman, Esq. Paul Aronson, Esq. Attorneys for the Respondent
Unpublished Opinion
Patricia Holian, Esq. Christina Oddo, Esq. Corporation Counsel Attorneys for the Presentment Agency
Brian Zimmerman, Esq. Paul Aronson, Esq. Attorneys for the Respondent
JACQUELINE B. DEANE, J.
Introduction
The Respondent, Desire S., is before the Court for the most serious offense that exists in Family Court, and one that is thankfully rare here, a finding of Murder in the Second Degree, a Class A designated felony. On May 10, 2021, SB lost his life at the too young age of 18 as his adulthood was just beginning, and, in that same moment, Desire's life, at the even younger age of 16, was forever changed.
Procedural Background
Desire S. was arrested pursuant to a warrant on December 16, 2021, after a silent indictment was filed in Supreme Court on December 1, 2021, and charged with Murder in the Second Degree, PL 125.25(3) based on the allegation that she and Ricardo Dash committed or attempted to commit a robbery, and that during the course of that crime or in immediate flight therefrom, they or another participant in the crime caused the death of SB. Desire was also charged, along with Defendant Dash and two other adults, with Attempted Robbery in the Second Degree (PL 110/160.10(1)) and Gang Assault in the Second Degree (PL 120.06). Desire initially appeared in Kings County Supreme Court in the Youth Part pursuant to the adolescent offender ("AO") law, CPL 1.20(44), and was remanded without bail to the Division of Youth and Family Services ("DYFJ") secure juvenile detention center, Crossroads, where she has remained to date.
As the facts alleged did not satisfy the three-prong test outlined in CPL §722.23(2)(c) and PL §70.02, the matter was presumptively removable to Family Court. The District Attorney's Office ("DA") stated its intention to make a motion to prevent removal based upon "extraordinary circumstances," which, pursuant to statute, they had to file "within thirty calendar days of arraignment." CPL 722.23(1)(a). However, the DA failed to file its motion until February 25, 2022, a full week after the deadline. The language of the statute is clear that the Court "shall order the removal" unless a timely motion is filed, and there is no permissible legal excuse for any delay past the 30th day. Id. Thus, removal to Family Court was determined to be legally mandatory at that point by the Youth Part, Judge Walker, in his Decision and Order dated March 16, 2022 on Ind. # 74022-21.
Desire was then produced in Family Court for the first time on March 17th and her remand to secure detention was continued. The case was pending in Family Court before another judge who was later elected to Supreme Court, and this Court was assigned the matter in January 2023. After this Court issued a decision granting an outstanding motion for a protective order as well as held several conference dates, Desire made an admission to the top count of this petition on April 27, 2023. In admitting to the charge of felony murder, Desire acknowledged that she participated in a planned attempt to assault and rob SB on May 10, 2021, with other individuals and that, during the course of that attempted robbery, one of these individuals shot and killed SB with a gun. The Court ordered dispositional reports by the Department of Probation and the Court Mental Health Clinic as required for a case involving the potential for a restrictive placement pursuant to FCA 351.1(1). Following the receipt of the Investigation and Report ("I&R") and the Mental Health Study ("MHS"), the Court held a dispositional hearing commencing on June 1st, which continued on June 6th, 7th, 23rd, 28th and ended with summations on June 29th. The Court reserved decision to review the voluminous exhibits placed in evidence and adequately consider the issues given the seriousness of the case.
Because of counsel's and the Courts various schedules, July 20th was the date selected for the Court's decision. Since this is one day beyond the 20 day maximum time for a dispositional decision set by statute, the Defense agreed to waive the 1 additional day. See FCA 353.5(1).
In the plea agreement, the Presentment Agency made clear that it was seeking a restrictive placement with the Office of Children and Family Services ("OCFS") for Desire for a period of 5 years pursuant to Family Court Act §353.5(4)(a)(i), but agreed that they would not request that the initial mandated period in a secure facility be longer than 12 months, as opposed to the maximum period of 18 months permitted by statute. See FCA §353.5(4)(a)(ii). No other promises were made. Given that Desire is now 8 months past her 18th birthday, she cannot remain in an OCFS placement even if placed restrictively, for the full 5 years, as the statute sets a maximum age for placement of 23. FCA §353.5(4)(d). At the dispositional hearing, defense counsel has argued that Desire does not require a restrictive placement and that the "least restrictive alternative, consistent with the needs and best interests of the respondent and the need for protection of the community" would be placement in a non-secure Close to Home ("CTH") facility run by the Administration of Children's Services ("ACS"). See FCA §352.2(2)(a) & 353.3.
Evidence
The Court placed into evidence the various dispositional reports as well as adjustment reports provided by the detention facility run by the ACS Division of Youth and Family Justice ("DYFJ") as to the Respondent's adjustment over her more than one year in Crossroads, listed below:
Court's Exhibit I - I&R dated 5/11/23
Court's Exhibit II - Youth Level of Service Report dated 5/9/23
Court's Exhibit III - MHS dated 5/12/23
Court's Exhibit IV - MHS Addendum Testing Report dated 5/12/23
Court's Exhibit V - MHS Addendum Report dated 5/19/23
Court's Exhibit VI - Placement Recommendation Tool dated 5/12/23
Court's Exhibit VII - Adjustment Report dated 6/6/23
Court's Exhibit VIII - Adjustment Report dated 6/1/23
Court's Exhibit IX - Adjustment Report dated 5/13/23
Court's Exhibit X - Adjustment Report dated 4/27/23
Court's Exhibit XI - Adjustment Report dated 3/24/23
Court's Exhibit XII - Adjustment Report dated 2/17/23
Court's Exhibit XIII - Adjustment Report dated 1/5/23
Court's Exhibit XIV - Adjustment Report dated 11/18/22
Court's Exhibit XV - Adjustment Report dated 10/26/22
Court's Exhibit XVI - Adjustment Report dated 9/13/22
Court's Exhibit XVII - Adjustment Report dated 7/28/22
Court's Exhibit XVIII - Adjustment Report dated 6/28/22
Court's Exhibit XIX - Adjustment Report dated 5/2022
Court's Exhibit XX - Adjustment Report dated 4/6/22
Court's Exhibit XXI - CCA Report dated 5/12/23
Court's Exhibit XXII - Dr. Stuart's CV
Court's Exhibit XXIII - Adjustment Report dated 6/28/23
There have been significant changes to the placement facilities available in New York City for young people placed away from home on juvenile delinquency cases since the transformation to the system that occurred with the adoption of CTH in 2012. Additionally, there are, and have always been, more limited options for placement facilities at every level of security for female-identified juveniles in the system. Given the seriousness of the issues in this case and the need for Desire to receive appropriate mental health treatment and other support while in placement to be able to return to the community safely and with the skills and ability to realize her own potential, this Court found it imperative to hear evidence about the actual placement options that currently existed for Desire. Therefore, the Court directed both OCFS and ACS to provide representatives as the Court's witnesses to give in person testimony at the dispositional hearing about the facilities and their services that Desire could potentially be placed in at every level of placement the Court was considering. Counsel for OCFS and ACS each made the appropriate person available for testimony on June 28th and, after some initial questions from the Court, each was cross-examined by counsel.
In support of its argument for a restrictive placement, the Presentment Agency called the assigned Detective Walsh-Guzman to testify and asked to cross-examine Dr. Stuart from the Court's Mental Health Clinic who completed the MHS. The Presentment Agency also introduced numerous exhibits as follows:
Presentment Agency's Exhibit 1 - Missing Persons Reports
Presentment Agency's Exhibit 2 - Flash Drive of Grand Jury Evidence
Presentment Agency's Exhibit 3 - Facebook Page
Presentment Agency's Exhibit 4A & B - Photos
Presentment Agency's Exhibit 5 A&B - Screenshots of Snapchat
Presentment Agency's Exhibit 6 - Body Camera Footage
Presentment Agency's Exhibit 7 - DYFJ Length of Stay Protocol
Presentment Agency's Exhibit 8 - Social Media Photo
Presentment Agency's Exhibit 9 - Surveillance Photo
Presentment Agency's Exhibit 10 - Facebook Entries
Presentment Agency's Exhibit 11 - Surveillance Photo
Presentment Agency's Exhibit 12 - Victim's Family Impact Statement and Photos
In support of their argument for non-secure placement, the Attorneys for the Child ("AFC") did not call any witnesses and relied on aspects of the dispositional and adjustment reports in evidence as well as various certificates and academic accomplishments, including recently being the valedictorian of the Crossroads high school graduation ceremony, earned by Desire during her time secure detention.
Respondent's Exhibit A - Electronic Recording Report dated 9/27/21
Respondent's Exhibit B - NYC Dept of Education Passages Report Card & Transcript dated 6/26/23
Respondent's Exhibit C - Center for Community Alternatives ("CCA") Report dated 6/29/23
Respondent's Exhibit D - Photo of Valedictorian Medal
Respondent's Exhibit E - Photo of Certificates in Various Subjects
Respondent's Exhibit F - Graduation Photo
In terms of the dispositional reports, the I&R recommends Placement in a facility, with no level specified, and the original MHS, dated May 5, 2023, recommended Placement in a CTH non-secure facility. However, Dr. Stuart submitted an addendum to the original evaluation on May 19th, which was done by court order granting the Presentment Agency's request, that the doctor review grand jury minutes and other documents for the first time which provided him with actual details of the crime and Desire's alleged involvement in SB's death. Although that report reiterated Dr. Stuart's original view that a restrictive placement was not needed, in his testimony he further clarified that statement to say that while he still recommended against restrictive placement, he had intended to specifically recommend a limited secure, rather than a non-secure, CTH placement for up to 18 months. Probation also completed a Placement Recommendation Tool ("PRT") which provides a recommendation as to placement level based on only three factors. Desire received a point for two out of the three factors, related to the severity of her offense and her involvement in a youth on staff assault while in detention, which was sufficient for the minimum score for a limited secure recommendation. The Youth Level of Service ("YLS") risk assessment instrument completed by Probation scored Desire's overall risk level as 24, which is in the high range (a score of 23 is required for high risk and 35 for very high risk).
Evidence
The I&R and MHS and accompanying reports introduced as the Court's exhibits provide the Court with extensive information on Desire's background. Desire's father has been incarcerated on a murder conviction since she was an infant. The mother's husband has acted in a paternal role towards Desire throughout her life. However, Desire did not learn the true identity and whereabouts of her biological father until she was 8 or 9 and suffered emotionally upon learning this news leading to her mother obtaining family therapy. Court's Exhibit III, MHS dated 5/15/23, p. 6. Desire has two older sisters and a teenage brother who lives with their mother and her husband. According to her mother, Desire began having conflicts with peers in grade school where she was "bullied" and responded aggressively leading to a school transfer in 4th or 5th grade. Although Desire's academic abilities were strong, "disciplinary issues interfered with her schooling." Id. at 5. Desire then began to behave in an oppositional way at home which grew worse every year including curfew violations, staying out all night and eventually going missing from home for periods of days or weeks. Ms. S was told via social media that Desire was being commercially sexually exploited during that time. As a result of this concerning behavior, Desire's mother would frequently have to call the police and/or ACS, eventually leading to her filing of a PINS petition and ultimately a placement of Desire in foster care with ACS. Id. at 4. As is often the case with teenagers initially remanded to ACS, Desire ended up at the ACS Children's Center where supervision over young people is unfortunately limited. While there, Desire met a 21-year-old who agreed to become her foster mother and, over Ms. S's objection, and much to this Court's consternation, that person was certified by ACS and Desire was placed with her. In that home, it appears that at age 15 to 16, Desire was essentially left on her own to act as she pleased, with even less oversight than at the Children's Center. This is where Desire was living when SB's murder occurred.
It is unclear when Desire's involvement in the "Crips" began and how long it lasted. Clearly, it was significant at the time of SB's murder as not only were gang members involved as the co-perpetrators, but the evidence is undisputed that higher level Crips members then sent Desire and the alleged shooter, Ricardo Dash, out of state after the murder occurred. See Pres.Ag. Ex. 2. Desire told Dr. Stuart that she left the Crips after "a year or two upon being jumped out" and boasted that she "didn't feel pain I can be bleeding and not know it." Court's Exhibit III, MHS dated 5/15/23, p. 7. The timing of this is unclear. Presumably, if it happened, it occurred sometime between Desire returning to NYC after SB's murder in June and before her arrest in December 2021.
According to the reports of Desire and her mother to Dr. Stuart, Desire received individual therapy over a number of years for diagnoses of ADD, ODD and self-harming behavior. She was also prescribed medication at times but, according to her mother, was never consistent in taking them. Id. at 5. Ms. S has acknowledged that she herself is diagnosed with bi-polar disorder and receives regular counseling and medication. While in detention, Desire reported being prescribed Adderall for ADHD, Lexapro for depression, a medication she could not remember and Seroquel, which was noted by Dr. Stuart to be an "antipsychotic medication that is sometimes prescribed for mood symptoms and its sedative effects." Id. at 8. Desire told the probation officer that she has found counseling while in Crossroads helpful and she would want to continue with it after disposition. Court's Exhibit I, I&R at 3.
In Desire's interview with Dr. Stuart, he describes her as serious and cooperative. Desire openly discussed her behavioral history although she at times minimized the severity of her problematic behavior. Court's Exhibit III, MHS at p. 5. Desire verified much of the history given by her mother and stated that her mother was a very supportive presence in her childhood and again recently, as her mother has visited her regularly in detention. Desire acknowledged that when she started "getting in trouble," she "didn't realize her mom didn't let her do things because she cared about me." Id. at p. 6. Desire describes herself currently as an excellent student, which is evidenced by her being the valedictorian at graduation and stated that she hopes to attend college and become a nurse and work with children.
Desire told Dr. Stuart that her only serious romantic relationship was with SB which lasted for about 3 years before his death. According to Desire, she learned SB had been unfaithful to her and "wanted to get him beat up." Id. p. 9. Desire made this plan with a few friends and admitted that she texted SB to come to a location to meet up with her, as they typically would do. Desire claimed to Dr. Stuart that she did not know Ricardo Dash had a gun and that when she saw SB get shot, she froze and ran. Desire then went to the Bronx with Mr. Dash and learned that SB had died at which point she left NYC by bus, "with a friend," for South Carolina where she stayed for about three weeks. At that point, Desire returned to NYC and "turned herself in" by going to a precinct. Desire was released, as she was only considered a witness at that time. Desire then lived in the home of her foster mother for about three months and then returned to her mother's home for several months prior to her arrest. During those months, Desire told Dr. Stuart "I hated myself" as she felt that SB's "death is her fault because "if I never called him he's still be alive." These feelings led Desire to cut herself as she had done on previous occasions as a form of self-harm she experienced as "stress relief." Id. at p. 9. Desire also expressed feelings of regret to the Probation Officer stating that she misses SB and was "very wrong." Court's Exhibit I, I&R, p.7.
Dr. Stuart concluded that Desire "appears to be a very high risk for future aggressive behavior and delinquency." Court's Exhibit III, MHS at p. 10. Desire "struggles with her responses to perceived or actual provocation, or with other issues that trigger anger or violent responses" though "she has improved upon her ability to resist violent impulses" in recent months in detention. Id. at 12. Dr. Stuart classified Desire as having a "severe emotional disturbance," as well as diagnoses of conduct disorder, ADHD and depression, and found her amenability to treatment to be "variable." Given the considerable risk Desire poses to the community, Dr. Stuart advises "on-going, close encompassing interventions, supervision and structure" but did not believe a restrictive placement was necessary. Id. at 13; Court's Exhibit V, p. 3, Addendum to Clinical Report, dated 5/19/23.
The Adjustment Reports in evidence cover a period over 15 months during which Desire was in secure detention. For most of her first year in detention, Desire was clearly having difficulty adapting to the restrictive setting and was engaging in a number of conflicts and fights with peers and staff. Starting in January of this year, Desire's behavior has been more consistently positive in that she has avoided conflicts and been engaged in all programming offered which ultimately allowed her to achieve the highest status in the behavioral incentive program. In the Adjustment Report dated 2/10/23, Desire is described as "complaint, respectful, and willing to participate in" mediations. Court's Ex I, p. 2. During Desire's stay in detention, Ms. S has been visiting regularly and her communication and relationship with Desire seems to have improved although there is no formal family therapy available. At this time, Ms. S has stated both to the Probation Department and Dr Stuart that she believes she can meet the challenges of parenting Desire in the community and wants her to return to her home.
The Presentment Agency's evidence consisted almost entirely of evidence related to the crime itself and Desire's role in luring SB to the location where he was shot and killed. The Court reviewed the voluminous amount of text messages and social media posts both from that night and other dates which establish that Desire was fully identified as a "Crip" "Movein" gang member for some length of time before her arrest and that her associates were also fellow gang members. The defense does not dispute these facts. While Desire has no prior delinquency findings, Desire and her mother described to Dr. Stuart that Desire has been involved in numerous fights in the past and, in some, caused injury to others. There are also a number of photographs in evidence that depict Desire holding what clearly appears to be a gun, despite her denials of ever being in possession of one to the MHS doctor. See Pres. Ag. Ex. 5. Many of the texts and social media posts in evidence also talk about meeting up with people, including SB's family, to fight, or "line them up" which the Detective testified is another way of conveying an intention to get someone beat up.
This seems to have been the intention Desire had for SB when she asked him to meet her on the night of May 10th. It appears that Desire believed she had been wronged by SB in some way, whether cheated on or embarrassed by him in some social media post, and her gang associates agreed to help her get back at him by robbing and/or beating him up if she lured him to meet her. The texts show that Desire lured SB with the implication that she would have sex with him. Tragically, even though SB seemed to have a suspicion that he was being set up by Desire, he went ahead with the plan to meet her with a fatal consequence. The defense argues that the Court should place considerable weight on the fact that the plea here was to felony murder and that no one is claiming that Desire was the shooter or did anything herself to actively physically harm SB. However, while felony murder is essentially a strict liability crime for all involved in one of the specified felonies where a death of a non-participant results, in this case, Desire clearly had the intent for SB to be physically harmed. While this Court does believe that Desire did not want, and never intended, for SB to lose his life, the Court credits the evidence in the grand jury testimony that when the crime was planned, Ricardo Dash made clear that he would not be chasing after SB if he tried to run and that he would shoot him instead. This is in fact exactly what happened. It is notable to the Court that the felony murder statute does allow for an affirmative defense where, in summary, the participant in the crime can show that she had "no reasonable ground to believe" that another participant was armed with a deadly weapon nor that they intended to engage in conduct likely to result in death or serious physical injury." PL §125.25(3)(a-d). In making the admission to felony murder, Desire made a knowing decision not to attempt to raise this defense at a trial and the Court confirmed with Desire that she had been advised of this defense and was waiving it as part of its plea allocution. Thus, it appears that, although Desire has taken responsibility for this crime by making the admission in court and repeatedly expressing remorse for the fact that SB would be alive if she had not persuaded him to meet her that night, she has not fully acknowledged or come to terms with the fact that she knew his life could be in jeopardy and she had him come anyway. In the Court's view, this indicates the need for additional internal work through therapy and the maturation process before Desire can safely be returned to the community.
According to the testimony of Ms. Sappio from OCFS, there are two girls secure facilities in New York State, one is west of Syracuse and the other northeast of Albany, each currently housing about five young women. There are two limited secure facilities, one west of Utica, another unit in the one near Albany, and a third that combines limited and non-secure girls in Long Island. All of these OCFS facilities have the same 1-8 staff to resident ratio. The higher levels of security are distinguished by the level of restrictive hardware both surrounding the facility and internally as well as a higher staff to youth ratio. While the overall programming is the same, residents in limited-secure facilities leave the facility for some recreation and trips whereas secure residents only leave for medical reasons and must be shackled at all times. There is no ability to earn home passes in secure, and Ms. Sappio indicated that it is not OCFS's practice to allow home passes in limited secure even though she acknowledged, when asked by the Court, that the Family Court Act provides a detailed blueprint for allowing these when appropriate. See FCA §353.5(4)(a)(iv). Therapeutic support is similar across all facilities as is the availability of weekly home visits and daily phone calls from family members. College classes can also be arranged in all facilities. Finally, electronic monitoring for 60 days can be a component of the initial return to the community on after-care if indicated.
According to the testimony of Ms. Coleman from ACS-DYFJ, there is only one limited secure girls' facility in CTH located in the Bronx and it currently has NO residents. There are no home passes granted from this facility and the residents remain on-site for everything except medical emergencies where they will be transported in hand and foot restraints. There are two girls non-secure facilities in New York City, one in the Bronx and one in Brooklyn, which have a staff-resident ratio of 1-6, and each currently has approximately 2-3 girls. Residents in non-secure facilities leave the facility daily for school and have the ability to earn home passes after an initial month in placement. Ms. Coleman explained that the CTH model anticipates a release date of 6 months after placement in either a limited or non-secure facility regardless of the court-ordered maximum length of placement, and that planning towards this date starts when the youth enters the facility. The ACS "Length of Stay Protocol" was adopted after a review in 2019 determined that the average length of stay was 305 days, or 10 months, which did not align with the length of stay that "the research shows produced the greatest benefit to youth and the community." Pres. Ag. Ex. 7, p. 1. Pursuant to the protocol, CTH leadership has to approve any request by a facility to keep a young person in placement beyond 8 months. Id. at p. 4. As within OCFS, therapeutic support is similar across all facilities and there did not seem to be any significant substantive differences between the level of therapy available in the two agency's systems except that, since Desire would be the only person if placed in the limited secure facility, she would not be able to engage in any of the group counseling that is a part of the programming. Weekly visits and daily phone calls from family members are available with the clear difference being that these facilities are more easily accessible for Desire's family coming from Brooklyn. College classes are available but likely can be arranged in all facilities. Ms. Coleman testified that there is not currently anyone placed in CTH who has a finding for a homicide and that the nature of Desire's crime would not play a role in the decisions around her length of stay.
Legal Analysis
"Delinquency proceedings are designed not just to punish the malefactor but also to extinguish the causes of juvenile delinquency through rehabilitation and treatment. Indeed, a hallmark of the juvenile justice system is that a delinquency adjudication cannot constitute a criminal conviction and a juvenile delinquent cannot be denominated a criminal. Rather, a Family Court adjudication is a civil proceeding, and its purpose is to supervise and guide a troubled youth." Green v Montgomery, 95 N.Y.2d 693, 697-98 [2001] (internal citations and quotation marks omitted). See also Matter of Quinton A., 49 N.Y.2d 328, 335 [1980] ("[I]n most cases the Legislature has chosen not to brand the juvenile who commits an act which would otherwise be a crime a criminal, but recognizes that he is a person not fully responsible for his conduct.").
The dispositional scheme of Article 3 encapsulates this essential difference between juvenile delinquency and adult criminal prosecutions in the language of Family Court Act § 352.1. That part of the statute sets forth that a juvenile delinquency adjudication is a two-fold process where the entry of a fact-finding, whether after trial or admission, is only the first step. In order for the adjudication to occur, the Court must make an additional finding at the dispositional stage, namely that the respondent "requires supervision, treatment or confinement." Family Court Act§ 352.1(1). If that threshold finding is made, in the case of a class A designated felony like this one, the Court must first consider whether a restrictive placement is needed. FCA §353.5(2). The statute requires the Court to consider the following factors in making this decision: "the needs and best interests of the respondent; the record and background of the respondent, including but not limited to information disclosed in the probation investigation and diagnostic assessment; the nature and circumstances of the offense, including whether any injury was inflicted by the respondent or another participant; the need for protection of the community; and the age and physical condition of the victim." FCA §353.5(2)(a-e). The Court has "considerable discretion to determine whether a restrictive placement is necessary." Matter of Lavon S., 153 A.D.3d 526, (2d Dept. 2017), citing, Matter of Manuel R., 89 N.Y.2d 1043 (1997).
As previously noted, homicide cases, and even those other designated felonies where restrictive placement is sought by the Presentment Agency, are unusual in Family Court. For this reason, there are very few appellate cases to guide this Court in its decision and even less that have been decided since 2012 when the CTH placement scheme was adopted by New York City. See Lavon S., 153 A.D.3d at 526 (holding that the Court providently exercised its discretion in ordering a 3 year restrictive placement); Matter of Joseph B., 110 A.D.3d 501 (1st Dept 2013) (3 year restrictive placement warranted even though psychiatrist and probation officer recommended against a restrictive placement given the juvenile's history); Matter of Malik H., 107 A.D.3d 447, (1st Dept 2013) (3 year restrictive placement appropriate for 15 year old even though psychologist and psychiatrist recommended against a restrictive placement but did recommend placement in a "highly structured environment outside the community"). See also Matter of Dwayne J.R., 60 A.D.3d 1467 (4th Dept 2009) (5 year restrictive placement appropriate for 14 year old who participated in murder of 18 year old and needed "intensive psychotherapy" among other services). The two cases cited by the AFC where restrictive placements were reversed by the Appellate Courts are from the 1970s when the agency that ran the facilities and the entire juvenile delinquency placement scheme and philosophy was totally different than the one envisioned in the CTH model.
If a restrictive placement is found to not be necessary, the Court is to revert to the usual standard for delinquency dispositions pursuant to Family Court Act § 352.2(a). "In determining an appropriate [specific dispositional] order, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community. [T]he court shall order the least restrictive available alternative which is consistent with" those two factors. Id.
The Respondent has already consented to this Court ordering the highest level dispositional alternative for a non-designated felony, namely, placement away from home for 18 months in a juvenile facility, and she has further agreed to the added restriction that she remain in the facility for a minimum of 6 months. The question here is whether the Presentment Agency has established that the statutory factors exist to mandate a restrictive placement and what amount of credit, if any, should be given to Desire for the 19 months she has spent in secure detention. In arguing for a restrictive placement, the Presentment Agency has requested that Desire spend the first 12 months of her placement in a secure facility and then be stepped down to a limited secure facility for 12 months as required by statute. FCA §353.5(4). The Presentment Agency has also argued that Desire should only be given credit for her last 3 months in detention because that is when she became able to control her aggressive impulses. Finally, the Presentment Agency noted that the statute does not allow Desire to remain in placement past her 23rd birthday which will be on November 7, 2027, which means that, even if placed restrictively, Desire could not remain in placement for the full 5 years. FCA §353.5(4)(d).
While it is not the purpose of the dispositional hearing to litigate Desire's involvement in the incident as she already accepted responsibility for SB's murder through her plea, the Court does need to consider her role and understanding of the potential consequences of her actions in applying several of the required statutory factors such as "the nature and circumstances of the offense, including whether any injury was inflicted by the juvenile or another participant; the need for protection of the community; and the age and physical condition of the victim." FCA §353.5(2)(c-e). In making this dispositional decision, the more the Court can understand what influenced Desire's role in this offense, the better the Court can determine what Desire will need moving forward to guide her mental and emotional growth to allow for better decision-making once she is released. At disposition, the AFCs did not challenge any of the evidence related to Desire's role in the crime itself with the exception of entering one exhibit, a police report from an unnamed person's custodial interrogation, where this "suspect" identified the other "suspects" in various photos and videos from the incident leading up to SB's death and stated to the police that the groups' "intentions were just to beat the boy up." Resp.'s Exhibit A, NYPD Report dated 9/27/21.
Based on the extensive social media posts, text communications and grand jury testimony in evidence, it is clear that Desire was instrumental in bringing SB to the place he met his death with the intention of his suffering bodily harm, while either ignoring or giving insufficient weight to the very real risk that his life itself could be put at risk or lost.
The Court asked Dr. Stuart about the concept of "magical thinking," which, as used here, relates to a phenomenon in adolescent development where, when a young person has a plan of action in mind where they do not want a potential bad consequence to occur, their stage of brain development allows them to convince themselves that the undesired event will not happen, and they can forge ahead in that belief even if all the known facts indicate a very real risk that the bad consequence is very likely to come to fruition. While the Court believes it is exactly this type of thinking that led Desire to convince SB to meet her while not wanting to see him get murdered, in this case the information about the risk that Desire had was considerable, and the Court must consider that as relevant to the amount of work Desire still needs to do to insure she will make decisions in the future that will not put herself or others at risk. While Desire has made significant strides in this regard in the detention setting in that she has greatly reduced, and for a number of months eliminated, her tendency to have conflicts with staff and other residents as she often did in the early months of her detention, she has been living in an extremely controlled environment which is not sufficiently indicative of how Desire might handle herself in the community or even in a non-secure CTH setting. Other than the testimony of Dr. Stuart, the Court has not heard from anyone who has interacted with Desire in the last several months to truly know where Desire's thought process and ability to control her impulses stands today.
The Court makes significant note of the fact that Ms. S has appeared at every court date in support of her daughter. Additionally, she and Desire have seem to have made substantial progress towards repairing their relationship in the time since Desire returned to her mother's home a few months before she was arrested for SB's murder in December of 2021 and in their regular phone calls and visits since Desire has been in secure detention. The Court commends Ms. S for her commitment to being physically present for Desire even when it is clearly difficult for her both to see Desire in custody and to face hearing the details of Desire's involvement in this terrible crime. Despite this progress, the Court cannot be confident that Ms. S will be able to have a measurable impact over Desire's behavior when she is released. Ms. S filed 24 missing persons reports for Desire in the period from March 2018 through May 2021. Although this dynamic changed in the time they lived together for a few months prior to Desire's arrest, this was a period when Desire was consumed by the knowledge of her involvement in SB's murder, the fact that the police were investigating and that she was at risk of arrest. Therefore, it is not a basis from which the Court can assess how things will be once Desire is released after her time in placement. Desire is already over 18 which means she is legally an adult and can make her own decisions. She will not need to continue living with her mother if she does not like her mother's rules or expectations or if there is tension in their relationship. The Court would want to see how Desire functions first within a facility setting with less restrictions and which allows Desire to slowly progress over time to have limited home visits with her mother before a release could safely occur. Additionally, Desire and her mother need to work through their history of shared trauma and stress over the identity of Desire's father, Desire's past behavior that led to her being in foster care, and the impact of this incident on both of them. Only after that work is well underway would it be possible to assess whether Ms. S will be able to play a meaningful role in guiding Desire towards a safe return to the community.
As someone who has spent almost 40 years working with young people and families in this system, this Court believes in the importance of a separate Family Court, even for the most serious crimes like this one, because the science tells us adolescents' brains are still developing until the mid-20s and that the poor decisions they make before then, even ones with the worst consequences like this, are due to that lack of brain development which is often exacerbated by a history of trauma. This Court is very aware that these words sound less than adequate to guide a just result when another young person's life has been lost related to the same poor decision, and that future was denied. While the Family Court system is designed to be forward-looking, Shaheem does not have the ability to look ahead to the rest of his life and his family has lost the chance to witness that future and be a part of it.
"It has been noted that 'adolescents are overrepresented statistically in virtually every category of reckless behavior.'" Roper v Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 1195, 161 L.Ed.2d 1 [2005] (quoting Arnett, "Reckless Behavior in Adolescence: A Developmental Perspective," 12 Developmental Rev. 339 (1992)); see also Brief of the Amer. Med. Ass., Amer. Psychiatric Assoc., et. al. as Amici Curiae in Support of Respondent, Roper v Simmons, 2004 WL 1633549 (U.S.), 2-3 (U.S.,2004) ("Cutting-edge brain imaging technology reveals that regions of the adolescent brain do not reach a fully mature state until after the age of 18. These regions are precisely those associated with impulse control, regulation of emotions, risk 3 assessment, and moral reasoning. Critical developmental changes in these regions occur only after late adolescence.").
This Court appreciates that SB's family may want Desire to receive as much time in a facility as possible, especially given that she is not facing the much harsher and lengthier punishment she would likely have received had her case remained in adult court. It is clear from the crime scene video, which was extremely painful to watch, that SB wanted Desire to be held responsible for her actions. It is also clear from the texts submitted to this Court that SB also cared about Desire. Nothing can bring SB back. The best way for Desire to honor his memory and repair the harm she has caused is to learn from her past mistakes and mature in a positive way to where she can realize her full potential and give back to others, perhaps as a nurse, which Desire has expressed an interest in doing.
Based on the evidence at this hearing, in particular the testimony provided by the ACS DYFJ representative Ms. Coleman, the Court is concerned that a placement in CTH will result in Desire being returned to the community before she has had time to do the internal work and shown the behavior change that is needed here, and that this will jeopardize her well-being and community safety. CTH is clearly modeled to plan for a release of a young person to the community in 6 months, even if the dispositional order is for placement for up to 18 months in a limited secure placement facility. There is also no plan to step young people down to non-secure before a return to the community. While this Court is aware of, and agrees with, the research that, as a general matter, a longer than 6 month length of stay does not lead to lower recidivism for juveniles, and in fact can sometimes result in the opposite, the circumstances of this case, and Desire's history and mental health needs, are far from typical. Given the length and severity of Desire's past behavioral issues and gang involvement as well as the seriousness of this crime and the level of potential risk to the community, the Court finds that a longer period of time in placement is needed than what would occur with a CTH placement. The Court believes that Desire needs to have more intensive therapy, including ideally family therapy with her mother, and the ability to step down gradually to different levels of security restrictions in order to assess her readiness to implement different decision-making skills in the community.
The Court has a greater ability to order OCFS to carefully make the transitions to reduce the level of restrictions on Desire and assess Desire's response to these changes along the way. The Court is especially concerned about the lack of any other girls currently placed in the one CTH limited secure facility which will not allow for ANY assessment of peer interaction once Desire steps down from her current secure detention setting. For all of these reasons, the Court finds that a restrictive placement is necessary in this case.
The Court sincerely hopes that Desire appreciates that she is fortunate to be alive and unharmed, given her past gang involvement, and that she is not subject to the more punitive adult criminal justice system. This Court hopes that Desire views this placement as an opportunity to focus on her decision-making, her relationship with her mother and on her education given that she is clearly bright and have a lot of potential to offer the world in the future. This Court is ordering that OCFS work with Girl VOW and CCA, if Desire wishes, to continue your relationships with those programs and allow them to visit her in any facility she is placed in. This Court is also ordering that, if the Mayo family is willing, OCFS work with The Peace Institute, or a similar program, to allow Desire, her family, and SB's family to engage in a restorative justice process while in the facility.
Therefore, the Court finds that the Respondent is in need of supervision, treatment and confinement, and hereby adjudicates her to be a juvenile delinquent. Family Ct. Act §§ 350.3[2], 352.1[2]. The Court finds by a preponderance of the evidence that a restrictive placement is required by the factors in Family Court Act 353.5(4). The Court is giving Desire 12 months of credit for the time she has been in the secure detention facility. In making the decision to give Desire this credit, the Court is acknowledging several points: 1) the significant impact that this lengthy period of detention has had on Desire in terms of the difficulty of the experience mentally and emotionally given her young age; 2) the fact that she has learned and grown in her ability to control her aggressive impulses; and 3) that Desire has taken full advantage of both mental health counseling and available educational and programmatic services during this time such that she completed high school as valedictorian with a Regents diploma. While the Court does not believe community safety requires that Desire spend any additional time in a secure facility, reducing Desire's total placement time by an additional 7 months would not be in the interests of community safety. See FCA § 353.5(4)(a)(i).
The Court is ordering that Desire's placement term include a 12 month period in a secure facility and that this period has been covered by the 12 months of secure detention credit that the Court is granting. Thus, the period of the secure placement "set by the order", as required in FCA 353.5(4)(ii), is the period Desire has already served in detention. See Matter of Dwayne J.R., 60 A.D.3d 1467 (4th Dept 2009) ("We note that the court reduced the initial period of secure confinement by the period of time respondent spent in juvenile detention"). The Court is ordering that Desire spend the next 12 months in a residential facility as required by FCA 353.5(4)(a)(iii) to start in a limited secure facility and OCFS has the discretion to determine at what point Desire is ready to step down to the non-secure Brentwood, Long Island facility consistent with the safety of the community. With the 1 year of credit, Desire will be in OCFS care or oversight for a total period of approximately 4 years. The Court finds this to be the appropriate length of time given all the factors in this case.
The Court strongly urges OCFS to place Desire in the Brentwood facility as soon as a safety assessment allows because its proximity to the city will allow her mother to visit regularly and also hopefully be engaged in treatment with Desire. The presence of other young women in these facilities is critical for Desire to be able to continue her progress in learning to manage her emotions and frustrations in appropriate ways and will allow the facility to assess that progress to enable Desire to be safely returned to the community. The Court is also ordering OCFS to provide Desire with time limited home visits to see her mother in the community pursuant to FCA §353.5(4)(iv) which are required to begin supervised by someone from the facility. Finally, the Court orders that Desire be assessed as to whether a period of electronic monitoring would be appropriate to insure community safety when she is initially returned to the community. The Court is also ordering regular reports to the Court at the 1, 3, 6, 9, 12, 15, 18 and 21 month periods as well as the 2 and 3 year marks and a final report prior to discharge from after-care.