Opinion
E-xxxxx-xx
03-12-2019
IN THE MATTER OF K.C.T., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, Respondent.
Office of the County Attorney, Joanne Curran, Esq. Valerie Cartright, Esq., Attorney for Respondent K.C.T.
Office of the County Attorney, Joanne Curran, Esq. Valerie Cartright, Esq., Attorney for Respondent K.C.T.
The following papers were read on this Motion: Notice of Motion to Dismiss and Supporting Papers 1 Assistant County Attorney's Answering Affirmation and Legal Memorandum 2 Respondent's Reply Affirmation 3
By Notice of Motion filed January 24, 2019, the juvenile respondent moves to dismiss the petition in this designated felony proceeding on the grounds of violations of the respondent's right to due process. The respondent also moves for an Order granting him the right to make additional pre-hearing motions as permitted under statute. The petitioner, the Office of the County Attorney, Nassau County ("presentment agency"), filed opposition to the respondent's motion. The respondent's counsel filed a reply affirmation and requested a hearing on the matter if helpful in deciding the motion. The respondent's Motion to Dismiss is determined as follows:
The respondent, K.C.T. (D.O.B. 02/07/04) ("respondent"), is charged by way of a designated felony petition, with acts which, if committed by an adult, would constitute the crimes of Criminal Sexual Act in the First Degree, in violation of PL § 130.50(3), a B Felony; and Sexual Abuse in the First Degree, in violation of PL § 130.65(3), a D Felony. (Ex. A to Valerie M. Cartright, Esq., Affirmation in Support of Motion to Dismiss ["Cartright Aff. in Support"], ¶ 4). The respondent has been charged in relation to an incident that is alleged to have occurred between June 1 and June 11, 2017, in which the respondent, when he was 13-years-old, engaged his younger cousin, then 7-years-old, in oral sexual conduct by inserting his penis into her mouth, and subjected her to sexual conduct by inserting his penis into her mouth and buttocks. (Ex. A to Cartright Aff. in Support, ¶ 4).
The petition is supported by written depositions from the complainant's father, dated October 2, 2017, and the complainant's cousin, dated October 19, 2017. (Exs. C and D to Cartright Aff. in Support). The petition is also supported by a written statement from the complainant, dated December 11, 2018, in which the complainant swears that when she was seven years old and in the respondent's (her cousin) room at his house in Long Beach, the respondent put his penis in her buttocks. (Ex. E to Cartright Aff. in Support). She further swears that the respondent told her to put her mouth on his penis and she did. (Ex. E. to Cartright Aff. in Support).
The respondent's counsel asserts that the Long Beach Police Department ["LBPD"] conducted a videotaped interview of the complainant on September 25, 2017. (Cartright Aff. in Support, ¶ 25; see also Ex. E to Cartright Aff.in Support). The respondent's counsel further asserts that the LBPD contacted the respondent in the winter of 2017, and that the respondent cooperated with the LBPD and asserted his innocence at that time. (Cartright Aff. in Support, ¶ 6). The LBPD contacted the respondent around the middle of May 2018, at which point the respondent's attorney reached out to the LBPD to schedule a surrender date of May 24, 2018. (Cartright Aff. in Support, ¶ 7). On May 24, 2018, the respondent surrendered himself and was processed and fingerprinted. (Cartright Aff. in Support, ¶ ¶ 8-9). On May 30, 2018, the respondent appeared before Nassau County Probation Service with counsel for questioning and possible adjustment. (Cartright Aff. in Support, ¶ 10). Probation referred the matter to the presentment agency on May 25, 2018 and the presentment agency filed the subject JD petition on December 13, 2018. [Valerie M. Cartright Esq. Reply Affirmation, dated February 14, 2019 ("Cartright Reply Aff."), ¶ 14].
The respondent, through counsel, argues that the designated felony petition should be dismissed because the respondent's right to a speedy trial was violated due to the LBPD and presentment agency's prepetition delay, i.e., an eight (8) month delay from the LBPD's videotaped interview of the complainant to the respondent's arrest, followed by a seven (7) month delay from the respondent's arrest (which was the same time that the matter was referred to the presentment agency by probation) and the presentment agency's filing of the designated felony petition. The respondent's counsel argues that the presentment agency provided no explanation for the delay and that the delay "greatly impaired" the respondent's defense. (Cartright Aff. in Support, ¶¶ 38, 43). The respondent's counsel argues that the complainant's story about the details of the alleged incident has changed during the 15 (fifteen) -month delay, with variations of where the incident occurred, when it occurred, who committed the incident and who was present at the time of the incident. (Cartright Aff. in Support, ¶ 51).
The respondent's motion includes a request for leave to make any further pre-hearing motions as may be necessary. (Cartright Aff. in Support, ¶ 55).
In the presentment agency's opposition to the respondent's motion, counsel cites to the allegations in the complainant's videotaped deposition and the supporting depositions of the complainant's father and her cousin. (Joanne Curran, Esq., Answering Affirmation and Legal Memorandum, dated January 31, 2019 ["Curran Aff. in Opposition"], ¶ A. "Facts"). The LBPD contacted and met the respondent and his mother in late 2017 but the respondent was not custodialized at that time. (Curran Aff. in Opposition, ¶ A. "Facts"). The presentment agency asserts that after the meeting, LBPD continued to investigate the matter and attempted to custodialize the respondent "on no less than six occasions over the next four months" and that on May 24, 2018, the respondent was custodialized and the matter was referred to the Nassau County Attorney's Office. (Curran Aff. in Opp., ¶ A).
While the presentment agency's motion papers state that the LBPD and respondent's initial meeting occurred in December 2018, the respondent's counsel noted such error in her reply affirmation and clarified that this initial meeting with the LBPD occurred in December 2017/January 2018. --------
The respondent's counsel argues that the presentment agency's reason for the first eight (8) month delay between the first interview with the complainant and the respondent's arrest is "disingenuous", in that the LBPD supposedly elected not to custodialize the respondent while his mother was dismissing children from her daycare program, and in April 2018 the LBPD knocked on the respondent's door at the exact moment the mother dismissed children from her daycare program. (Cartright Reply Aff., ¶ 10). Respondent's counsel further points out that the LBPD has not asserted that they had difficulties getting in touch with the respondent and his mother before their initial meeting in December 2017 and thus the LBPD should have had the information needed to contact to the respondent and/or his mother between December 2017 and April 2018. (Cartright Reply Aff., ¶ 11).
The presentment agency's explanation for the seven (7) month delay between probation's May 2018 referral of the matter and the presentment agency filing the JD petition consists substantially of general statements regarding the presentment agency's responsibilities to investigate and to file a facially sufficient petition. (Curran Aff. in Opp., ¶ B[2]). The presentment agency further attributes the delay to the fact that the complainant's deposition was initially video recorded and needed to be reduced to writing and sworn to by the complainants to be made part of a facially sufficient accusatory instrument. (Curran Aff. in Opp., ¶ B[2]). The presentment agency contends that the complainant was not made available to the presentment agency or the LBPD for this purpose by either her custodial parent mother or her non-custodial parent father notwithstanding the presentment agency and LBPD undertaking "no less than fourteen attempts" to secure such cooperation. (Curran Aff. in Opp., ¶ B[2]). Counsel contends that the child was not presented to the LBPD for this purpose until the father obtained custody of the child later in 2018. (Curran Aff. in Opp., ¶ B[2]).
The presentment agency further contends that the respondent has presented no impairment or prejudice attributable to the delay in filing the designated felony petition. (Curran Aff. in Opp., ¶ B[5]).
The respondent's counsel disputes the presentment agency's explanation for the second delay and argues, first, that the presentment agency and/or LBPD had multiple opportunities to secure a written statement from the complainant between September 25, 2017, the date of her videotaped statement, and December 11, 2018, the date of her written statement. (Cartright Reply Aff., ¶ ¶ 16-18). The respondent's counsel also disputes the presentment agency's explanation that the complainant was not made available to have her statement reduced to writing until her father obtained custody in late 2018, contending that the respondent believes that the complainant's father had custody of the child as early as March 2018.
DISCUSSION
The due process right to a speedy trial applies in the context of juvenile delinquency proceedings. (Matter of Benjamin L., 92 NY2d 660,668 [1999]; Matter of Isaiah L. v. Suffolk County Dept of Social Services, 2019 WL 693187 [2d Dept. 2019]; Matter of Shaquan N.M., 27 AD3d 565 [2d Dept. 2006]. In determining whether a respondent's due process rights were violated by a delay between the respondent's arrest and the presentment agency's filing of a juvenile delinquency petition, the Court is required to engage in a balancing of the following factors: 1) the extent of the delay; 2) the reason for the delay; 3) the nature of the underlying charges; 4) whether there has been an extended period of prefiling detention; and 5) whether there is any indication that the defense has been impaired by reason of the delay. (Matter of Benjamin L., supra, 92 NY2d at 668 [citing to People v. Taranovich, 37 NY2d 442 (1975)]). In balancing such factors, the Family Court "must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings". (Matter of Benjamin L., supra, 92 NY2d at 668). The Court of Appeals has expressly refused to endorse a "per se rule regarding speedy trial violations" and has instead instructed that "[t]he factors must be collectively evaluated on a case-by-case basis since 'no rigid precepts may be formulated which apply to each and every instance in which it is averred that there has been a deprivation of the speedy trial right'". (Matter of Benjamin L., supra, 92 NY2d at 670).
LENGTH OF DELAY
In this case, the presentment agency filed its JD petition against the respondent on December 13, 2018, seven (7) months after the respondent was arrested on May 24, 2018 and fifteen (15) months after the Long Beach Police Department [LBPD] first interviewed the complainant on or about September 25, 2017. (Cartright Aff. in Support, ¶¶ 27-29). In the Matter of Benjamin L., supra, the Court of Appeals measured the prepetition filing "delay" from the date of the respondent's arrest to the presentment agency's filing of its petition. (Matter of Benjamin L., supra, 92 NY2d at 668; see also, Matter of Gordon B., 83 AD3d at 1165). However, in Matter of Benjamin L., supra, the respondent was arrested the same day as the alleged incident giving rise to the JD petition, while in this case, there was first an eight (8) month delay from the date the LBPD first interviewed the complainant to the respondent's arrest, followed by a seven (7) month delay from the respondent's arrest in May 24, 2018 to the presentment agency's December 2018 filing of the JD petition.
In this case, both the initial delay before the respondent's arrest and the delay between the respondent's arrest and the filing of the JD petition are relevant to the Court's inquiry. (Matter of Richard JJ, 66 AD3d 1152, 1153-1154 [3d Dept. 2009] ["Here, the petitions were not filed until more than seven months after the alleged behavior underlying the charges, more than six months after respondents' arrests and more than six months after the matter was referred to the [presentment agency] following a complete investigation"]). However, whether the delay is 15-months or seven (7) months, the issue before the Court is whether there was "undue" prepetition delay. (Matter of Benjamin L., supra, 92 NY2d at 670 ["[W]hen evaluating the length of delay a court must carefully consider the complex and varied realities of juveniles and their problems"]).
NATURE OF UNDERLYING CHARGES
The charges asserted against the respondent are: 1) Criminal Sexual Act in the First Degree, a B Felony; and 2) Sexual Abuse in the First Degree, a D Felony. The charges arise from an incident in which the respondent, when he was 13 years old, allegedly engaged in oral sexual conduct with the complainant, his younger cousin (who was then 7 years old), by inserting his penis into her mouth and allegedly subjected the complainant to sexual conduct by inserting his penis into her mouth and her buttocks. These charges are serious and, if proven to be true, likely indicate that the respondent has mental and/or emotional needs requiring rehabilitation and additional services. (See Matter of Gordon B., 83 AD3d 1164, 1166 [3d Dept. 2011]).
EXTENT OF PREFILING DETENTION
The respondent was not incarcerated or detained before the filing of the petition.
REASON FOR DELAY
It is the presentment agency's burden to establish the reason for the prepetition delay. (Matter of Benjamin L., supra, 92 NY2d at 670). In the Matter of Benjamin L., supra, the Court of Appeals remitted the matter to the Family Court for a hearing because the record was devoid of any reason for the prepetition delay and the Court held that the reason for the delay, while not necessarily a "determinative" factor by itself, "might be relevant in relation to the other enumerated factors". (92 NY2d at 670).
In this case, the Court finds that the respondent has identified potential discrepancies and contradictions in the reasons the presentment agency offered to explain the delays, which causes this Court concern as to the reasonableness of the presentment agency and LBPD's successive delays. Specifically, the Court requires more information with respect to the presentment agency's blanket statement that the LBPD attempted to custodialize the respondent multiple times between early 2018 and his arrest on May 24, 2018, and with respect to the presentment agency's alleged fourteen attempts to obtain cooperation from the complainant's parents to have her videotaped statement reduced to writing. While the Court may be inclined to dismiss the petition without additional information from presentment agency, including information in response to the issues raised by the respondent, the Court finds that a hearing is more appropriate considering the severity and the nature of the charges asserted against the respondent, including the familial relationship between the respondent and the complainant and the fact that if the respondent was found to have committed the alleged acts, then he may have special mental or emotional needs and would require rehabilitation. (Matter of Gordon B., 83 AD3d 1164, 1166 [3d Dept. 2011]). The Court is guided by the following directive from the Court of Appeals:
"[A] child in need of rehabilitative efforts should not be denied that ameliorative attention merely because of some delay. To cut off the rehabilitation opportunity for a juvenile in the name of due process might defeat or contradict the express goals of article 3—to 'consider the needs and best interests of the respondent as well as the need for protection of the community' Thus, when evaluating the length of delay a court must carefully consider the complex and varied realities of juveniles and their problems"(Matter of Benjamin L., supra, 92 NY2d at 671).
On the other hand, the reasonableness and legitimacy of the prepetition delay is not only a relevant factor, but an important factor. In Matter of Isaiah L. v. Suffolk County Dept. of Social Services, 2019 WL 693187 [2d Dept. 2019], the Second Department affirmed the dismissal of a petition in a juvenile proceeding having found that the petitioner failed to establish a legitimate reason for a four (4) month filing delay, even though the charges asserted against the respondent were serious and the respondent did not demonstrate any actual prejudice to his defense attributable to the delay in filing the petition. Likewise, in the Matter of Richard JJ, supra, 66 AD3d at 1154, the Third Department affirmed the dismissal of petitions where the presentment agency failed to establish a legitimate reason for a seven (7) month prepetition delay, and where the police had completed the entire investigation on the case before the file was turned over to the presentment agency.
Thus, in light of the forgoing, and the numerous considerations enumerated by the Court of Appeals in the Matter of Benjamin L., supra, 92 NY2d at 671, the Court directs a hearing be held on the factor of the reason for the prepetition delay.
PREJUDICE TO THE RESPONDENT'S DEFENSE
The Court is not persuaded by the respondent's argument that the delay in this case warrants dismissal without a showing of prejudice to the respondent's defense. In the Matter of Benjamin L., supra, the Court of Appeals rejected an argument that the 13-month delay in that case was "great enough" to warrant a dismissal without showing "proof" or "fact of prejudice to the defendant" and cited to, inter alia, the statute of limitations governing Article 3 proceedings. 92 NY2d at 668. In this case, it is undisputed that the presentment agency timely commenced the juvenile proceeding in accordance with the governing statute of limitations. Thus, in addition to considering the presentment agency's explanation for the delay, the prejudice, if any, to the respondent is a relevant factor for the Court's determination. (Matter of Clive C., 16 Misc 3d 791 [Fam. Ct. New York Cty. 2007]["[W]hile mindful of the concern regarding the difficulty juveniles have in remembering long-ago events, finding prejudice based solely on the length of delay would be at odds with the justices' declaration that 'we do not endorse a per-se rule regarding speedy trial violations'"].
In this case, the respondent's argument that he has been prejudiced by the lack of detail in the complainant's supporting deposition with respect to "time, place or sequence of events" is likewise unpersuasive. (Cartright Aff. in Support, ¶¶ 46-51). The Court finds that the petition and the complainant's written statement are sufficiently specific with respect to "time" [between June 1 — June 11, 2017]; "place" [the respondent's residence in Long Beach]; and "sequence of events" [complainant was at the respondent's bedroom when the respondent engaged her in sexual contact by inserting his penis into her mouth and into her buttocks]. (see Petition, Ex. A to Cartright Aff. in Support, and Supporting Deposition of Zariyah Coombs-Jones, Ex. E to Cartright Aff. in Support).
The respondent also argues that he was prejudiced by the presentment agency's seven (7) month delay in filing the petition in that he was prevented from using a work permit to get a job as a summer camp counselor and that he has been otherwise precluded from enjoying the same luxuries as his peers while these charges have continued to hang over his head. (Cartright Reply Aff., ¶ 28). However, even if the presentment agency filed its petition the day it was referred the matter on May 25, 2018, the case still would not have been disposed of in time for the respondent to apply for such part-time summer employment. Likewise, under the Family Court Act, probation is statutorily authorized to attempt adjustment for as long as four-months total [two months without leave of the court, which may extend the period for an additional two months to 120 days total; see FCA § 308.1(9)].
Thus, adjustment efforts prior to the presentment agency's filing could have delayed the disposition of the respondent's case by up to four months, such that the case would not have been disposed of in time for the respondent to apply for summer employment. The Court further notes that the respondent has, by all accounts, cooperated with investigation efforts throughout the pendency of this matter and has been represented by counsel since before his arrest, which ameliorates potential concerns that the respondent, as a juvenile, lacks appreciation of the proceeding and/or that he lacks the ability to preserve a defense. (Matter of Benjamin L., supra, 92 NY2d at 669, fn 3).
However, while the Court is unpersuaded by most of the respondent's arguments regarding prejudice, it notes that the Court of Appeals advised that determining whether a juvenile's defense is impaired due to a delay "may be even more arduous" than in adult criminal cases, where "establishing actual prejudice may be a particularly difficult factor to prove in a speedy trial analysis due to the fact that time's erosion of exculpatory evidence and testimony 'can rarely be shown'". (Matter of Benjamin L., supra, 92 NY2d at 669). Likewise, the Court finds that the respondent has raised troublesome concerns as far as the respondent's assertions about the complainant changing the details of the subject incident over the course of the 15-month delay and the concerns that the complainant's memory of the alleged events will only worsen due to the delay, preventing the respondent from "properly defending himself" against the charges. (Cartright Aff. in Support, ¶ ¶ 48-51). The Court finds that, "remaining acutely cognizant of the goals, character and unique nature of juvenile proceedings," a hearing is further warranted on the issue of whether the respondent has been actually prejudiced by the prepetition delay. (Matter of Benjamin L., supra, 92 NY2d at 668-69).
RESPONDENT'S REQUEST FOR LEAVE TO FILE ADDITIONAL PREHEARING MOTIONS
The respondent's motion also requests the right to make additional pre-hearing motions as permitted under statute. This Court will adhere to the statutory provisions in Article 3 of the Family Court Act regarding pre-trial motions in juvenile proceedings. (FCA § 332.1; 332.2)
Thus, in consideration of the foregoing, the Court finds that the respondent's motion shall be held in abeyance pending the outcome of a hearing on the issues of the presentment agency's reason for the prepetition delay and the actual prejudice to the respondent, if any, caused by the prepetition delay.
Accordingly, it is hereby:
ORDERED, that the respondent's motion to dismiss is held in abeyance pending the outcome of a hearing in accordance with the foregoing; and it is further,
ORDERED, that all parties and counsel shall appear and be ready with all witnesses and evidence at 9:00 AM on March 25, 2019 for a hearing on this matter; and it is further,
ORDERED, that all other applications not addressed herein are deemed denied.
This constitutes the Decision and Order of the Court. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: March 12, 2019 ENTER ________________________ HON. CONRAD D. SINGER Judge of the Family Court