Opinion
Docket No. D-04048-19
08-04-2023
In the Matter of M.B.G., A Person Alleged to Be a Juvenile Delinquent, Respondent.
Nicole W. Friedlander, Esq. for Respondent - Sullivan & Cromwell LLP Alexander S. Holland, Esq. for Respondent - Sullivan & Cromwell LLP Alexandra C. Rogers, Esq. for Respondent - Sullivan & Cromwell LLP Karen Seemen, Esq. for the Presentment Agency - New York City Law Department
Unpublished Opinion
Nicole W. Friedlander, Esq. for Respondent - Sullivan & Cromwell LLP
Alexander S. Holland, Esq. for Respondent - Sullivan & Cromwell LLP
Alexandra C. Rogers, Esq. for Respondent - Sullivan & Cromwell LLP
Karen Seemen, Esq. for the Presentment Agency - New York City Law Department
HASA A. KINGO, J.F.C.
The following papers numbered 1 to 12 were read on this motion to suspend visitation:
Papers: No(s). Exhibits
Notice of Motion 1
Affirmation of Nicole Friedlander, Esq. in Support 2-8 Exhibits 1-6
Memorandum of Law 9
Affirmation of Karen J. Seeman, Esq. in Response 10-11 Exhibit A
Reply Brief 12
In this juvenile delinquency matter pursuant to Article 3 of the Family Court Act ("FCA"), the respondent M.B.G. ("Respondent") moves pursuant to FCA § 355.1, 315.2, 375.3, 375.2 to vacate certain orders and disposition of this court and expunge related court records. The Presentment Agency consents to sealing the record in question pursuant to FCA § 375.2 and opposes the remainder. After review of the motion papers cited above, exhibits thereto, and the court record, the motion is granted.
Background
On May 16, 2019, Respondent made an admission in this court to Petit Larceny, an A misdemeanor, in violation of Penal Law § 155.25, stemming from an incident that occurred on September 4, 2018, when he was 15 years old. On January 8, 2020, Respondent was adjudicated a juvenile delinquent and the court entered an Order of Disposition and an Order and Conditions of probation, directing 12 months of Probation Level 1.
As reported by Respondent and undisputed by the Presentment Agency, after the January 8, 2020 disposition, Respondent completed his probation without violation or delay (Freidlander aff. ¶ 13). As a term of his probation, he participated in a drug-treatment program to address his prior use of marijuana (id.). The program consisted of group and individual counseling three times a week to address substance use and mental health issues (id.). In 2022, Respondent studied with a tutor to take the Graduate Equivalent Degree ("GED") exam (id. ¶ 14). In May 2022, Respondent passed the GED examination on his first attempt (id.). Respondent's GED tutor submitted a letter in support of Respondent's application (id., exhibit 5). The tutor praises Respondent's commitment to receiving his GED and describes Respondent, inter alia, as honest, hard-working, and an individual of good character (id.). After receiving his GED, Respondent enrolled in the Borough of Manhattan Community College to study computer science, and he is on track to graduate in the spring of 2024 (id. ¶ 15). Respondent intends to pursue a career in computer science (id.).
Outside of his studies, Respondent also organized and participated in a basketball league with his peers (id. ¶ 16). He organized a basketball tournament in connection with the league in June 2022 and intends to organize another tournament in the summer of 2023 (id.). Respondent maintains that he has a close relationship with his mother, who he lives with and assists with selling fashion magazines and artwork by taking photographs and posting them as advertisements online (id. ¶ 17). Respondent has incurred no additional juvenile adjudications or criminal convictions (id. ¶ 18).
Respondent now moves the court (i) pursuant to FCA § 355.1 to vacate the fact-finding and dispositional orders entered in the juvenile delinquency docket due to a substantial change in circumstances, and thereafter dismiss the petition filed on the docket in the interest of justice pursuant to FCA § 315.2 or, in the alternative, because Respondent no longer requires supervision, treatment, or confinement pursuant to FCA § 352.1(2); (ii) pursuant to FCA § 375.3 to expunge all official records and papers, including judgments and orders of the court, including all duplicates or copies thereof, on file with the court, police agency, probation services and presentment agency regarding the finding of delinquency; and (iii) pursuant to FCA § 375.2 to seal all official records and papers, including judgments and orders of the court, relating to the arrest, prosecution, and probation service proceedings, including all duplicates or copies thereof, on file with the court, police agency, probation services and presentment agency regarding the finding of delinquency. The Presentment Agency consents to that portion of the motion which seeks to seal the docket, but opposes the remainder of relief requested.
Discussion
Respondent first moves this court to vacate the dispositional order pursuant to FCA § 355.1(b) due to a substantial change in circumstances. Section 355.1(b) of the Family Court Act grants the court discretion to "stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article" where there has been a "substantial change in circumstances" FCA § 355.1(b) (emphasis added). The FCA does not define what constitutes a "substantial change in circumstances," but courts have found that rehabilitation of a respondent may constitute a substantial change in circumstances (Matter of Emily P., 63 Misc.3d 755, 762 [Fam Ct, New York County 2019]["Here, far beyond rehabilitation, respondent has demonstrated a high level of professional and academic achievement coupled with a commitment to public service."; In re Amber F., 23 Misc.3d 1101(A), 2009 WL 818751, *3-4 [Fam Ct, Queens County 2009][Respondent's academic success, stable home life, community service and compliance with the terms of probation demonstrated rehabilitation sufficient to warrant relief pursuant to FCA § 355.1]; In re Andrew L., 34 Misc.3d 1234(A), 2012 WL 676976, *5 [Fam Ct, Queens County 2012][Respondent's compliance with conditions of release and positive community and school behavior constituted substantial change in circumstances]).
"The overriding intent of the juvenile delinquency article is to empower the Family Court to intervene and positively impact the lives of troubled young people while protecting the public." (Matter of Robert J., 2 N.Y.3d at 346). Thus, rehabilitation, alongside the need for protection of the community, is of utmost importance in juvenile delinquency proceedings (FCA § 301.1 ["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."]). Here, Respondent's successful completion of probation without incident or delay, along with commitment to his education, community, and family demonstrate his successful rehabilitation. This constitutes a substantial change in circumstances from the circumstances that led to his arrest and adjudication as a juvenile delinquent. Nothing in the language of FCA § 355.1, or any other provision of the Family Court Act, precludes post-dispositional relief, as suggested by the Presentment Agency. Therefore, vacatur of the dispositional order is appropriate.
Having vacated the dispositional order, this court finds that dismissal is also appropriate pursuant to FCA § 352.1(2). Section 352.1(2) of the Family Court Act directs that "[i]f, upon the conclusion of the dispositional hearing, the court determines that the respondent does not require supervision, treatment or confinement, the petition shall be dismissed." Whereas Respondent has completed parole and demonstrated rehabilitation, it is evident that he no longer requires supervision, treatment or confinement and dismissal is appropriate (see Emily P., 63 Misc.3d at 761). Notably, the Presentment Agency does not address the question of dismissal in its affirmation in response to the motion. Therefore, following vacatur of the dispositional order, the petition is dismissed.
Having found that dismissal is appropriate under FCA § 352.1(2), the court declines to address dismissal pursuant to FCA § 315.2(1), which provides for a discretionary dismissal where it would otherwise by unavailable by operation of law. Where, as here, a legal remedy is available to Respondent, that is the appropriate remedy.
Finally, Respondent moves to expunge all official records and papers, including judgments and orders of the court, including all duplicates or copies thereof, on file with the court. Family Court Act § 375.3 provides that "nothing in this article shall preclude the court's inherent power to order the expungement of court records." Respondent is currently pursuing an education in community college and aspires to a career in computer science. He seeks to expunge the juvenile delinquency records out of concern that the adjudication may affect his ability to find meaningful employment in his desired field.
The Presentment Agency opposes expungement on the grounds that the court lacks authority to expunge records of the police, probation, or other agencies, and that expungement should not be granted because this relief is generally reserved for cases where there was a finding of complete innocence, which is not the case here. With respect to the first argument, Respondent's reply brief clarifies that he only seeks the expungement of judicial records. Therefore, the request to expunge non-judicial records is moot.
Turning to the Presentment Agency's second argument, the Presentment Agency is incorrect that expungement is limited only to cases of "complete innocence" (see Matter of Emily P., 63 Misc.3d at 763). On the contrary, this court finds expungement of Respondent's records appropriate considering his rehabilitation and to promote, rather than impede, his future academic and career achievement. Certainly, the Court of Appeals has acknowledged, "[t]hat the very existence of delinquency records, despite provisions for confidentiality, may constitute a substantial impediment to entry into institutions of higher learning, government or private employment, the armed services or the professions, cannot be seriously questioned" (Dorothy D. v New York City Prob. Dep't, 49 N.Y.2d 212, 215 [1980]). This court, therefore, recognizes the validity of Respondent's concern regarding the potential impact of the delinquency adjudication on his future career prospects and agrees that expungement is an appropriate remedy in this instance.
Finally, Respondent moves to seal the delinquency record pursuant to FCA § 375.2(1). This section provides that, except in matters involving a designated felony, the court may, "in the interest of justice and upon motion of the respondent, order the sealing of appropriate records pursuant to subdivision one of section 375.1." A sealing order issued pursuant to FCA § 375.2(1) seals the Family Court record as well as the records of the police department, the presentment agency and the probation department (FCA § 375.1). The Presentment Agency does not oppose the motion insofar as it seeks a sealing order and acknowledges that "Respondent has met his burden in showing that an injustice would result by allowing the records of his juvenile delinquency matter to remain unsealed," and that Respondent has "demonstrated a record of rehabilitation and compliance" (Seeman aff in opposition ¶ 25-26).
Accordingly, it is hereby
ORDERED that the motion is granted; and it is further
ORDERED that the dispositional order, dated January 8, 2020, issued under Docket No. D-04048-19 is hereby vacated; and it is further
ORDERED that the petition filed under Docket No. D-04048-19 is hereby dismissed; and it is further
ORDERED that all official records and papers, including judgments and orders of the Court, relating to the arrest, prosecution, and probation service proceedings, including all duplicates or copies thereof, on file with the court, police agency, probation services and presentment agency regarding the finding of delinquency made on Docket No. D-04048-19 shall be sealed; and it is hereby
ORDERED that the records of this court filed under Docket No. D-04048-19 shall be expunged pursuant to FCA § 375.3.
This constitutes the order and decision of the court.