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discussing New York City Education Law section 3205, which states, in part, an attendance officer "may arrest without warrant any minor who is unlawfully absent from attendance upon instruction," and explaining the "arrest . . . is, in fact, a noncriminal detention, rather than arrest in the classic, criminal law sense," and the law is "a child protective statute, intended to insure to every child the schooling he needs to function in the adult world"
Summary of this case from L.C. v. StateOpinion
August 7, 1985
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Barbara Irolla Panepinto of counsel), for Commissioner of Social Services.
Bosco Bisignano ( John Bosco of counsel), for respondent.
Is the detention of a truant teen-ager for the purpose of returning the youth to school a "lawful duty" of a New York City policeman? This is the question presented by the instant juvenile delinquency proceeding, in which respondent is charged with acts which if committed by a person over the age of 16 years would constitute assault in the second degree.
A person is guilty of assault in the second degree when: "With intent to prevent a peace officer, police officer or a fireman, including a fireman acting as a paramedic or emergency medical technician administering first aid in the course of performance of duty as such fireman from performing a lawful duty, he causes physical injury to such peace officer, police officer or fireman". (Penal Law § 120.05.)
The facts proved beyond a reasonable doubt are as follows: On February 13, 1985 respondent arrived at Susan Wagner High School at 8:45 A.M. Although he was 15 minutes late, he avoided the "late pass" procedure by saying he was going in to see his guidance counselor. Ten minutes later he was seen outside the school, walking away from the school, by a school safety officer, who alerted New York City Police Officer Timothy Farrell. Officer Farrell, who was in uniform and who knew respondent by name, got in his police car and located respondent near the football field in the company of a group of youths. Officer Farrell told everyone to return to school, and all the other young people obeyed the instruction. Respondent, however, became obscene and refused to return. After an exchange of words the officer told respondent to get in the police car. When respondent refused, Officer Farrell got out of the car and attempted to handcuff respondent. It was Officer Farrell's intent to put respondent in the car and drive him back to the school, in accordance with Patrol Guide 180-18. Respondent then shoved the officer, punched him in the mouth and bit him on the hand. Backup officers arrived at the scene and subdued respondent.
At the time of the hearing, four months after the incident, Officer Farrell's hand still displayed a large discoloration, approximately one inch long, resulting from the bite, and several smaller discolorations on his knuckles. He was treated at Staten Island Hospital emergency room where the wound was cleansed. He also received a tetanus shot and antibiotics for one month were prescribed. He missed five days of work as a result of his injuries.
In pursuing respondent, Officer Farrell was carrying out his normal assigned duties, which include patrol of the perimeter of Susan Wagner High School to look for truants and bring them back to school. In preparation for this assignment, Officer Farrell, a patrolman assigned to the 122 Precinct, was given one week of special training specifically relating to truants, over and above the regular police training. His assignment is part of the New York City Police Department's "Truancy Patrol Program", which was initiated in January 1981.
"Truancy Patrol Program", Memorandum from the Commanding Officer of the Youth Services Section to the Chief of Patrol of the Police Department of the City of New York. (Aug. 15, 1984.)
Respondent does not contend that Officer Farrell's pursuit of respondent was the result of whim or caprice; rather, it is the lawfulness of the assignment which respondent challenges. School attendance is compulsory for youngsters in New York City under 17. (Education Law § 3205.) Enforcement power is specifically conferred on certain school officials: "A supervisor of attendance, attendance teacher or attendance officer, as the case may be, may arrest without warrant any minor who is unlawfully absent from attendance upon instruction." (Education Law § 3213 [a].) Respondent argues that this grant of authority is exclusive. The presentment agency, on the other hand, contends that the Education Law must be read together with N Y City Charter § 435 (a) which confers upon the police the power and duty, "to preserve the public peace, prevent crime, detect and arrest offenders * * * protect the rights of persons and property, guard the public health * * * enforce and prevent the violation of all laws and ordinances in force in the city".
We conclude that the deployment of police to pick up truants is a legitimate exercise of police power and hold that Officer Farrell was performing a lawful duty when he was injured by respondent. In so holding we are fully cognizant that respondent's conduct in leaving the school on the morning of February 13 was not criminal and that the "arrest" which the Education Law authorizes is, in fact, a noncriminal detention, rather than an arrest in the classic, criminal law sense. The police, however, properly have many other lawful functions besides the enforcement of the criminal law. The "multiplicity and complexity" of the police role in a democratic society has been judicially recognized, and the Court of Appeals has cautioned, "To consider the actions of the police solely in terms of arrest and criminal process is an unnecessary distortion." ( People v De Bour, 40 N.Y.2d 210, 218.)
We are also aware of a disparity in that respondent's conduct, if directed against an attendance teacher trying to return him to school, would constitute third degree assault, assuming the specific intent to cause physical injury could be established, whereas respondent here is charged with second degree assault because a police officer was involved. The Legislature might wish to consider adding attendance teachers to those public servants included in the second degree assault provisions. The disparity which exists at present, however, does not undermine the lawfulness of the performance of this duty by a police officer. It is the office rather than any specific function of the office which enjoys the special protection of the second degree assault statute. ( People v Wheeler, 59 Misc.2d 825 [County Ct, Chemung County 1969], affd 36 A.D.2d 549 [3d Dept 1971].)
The compulsory education law is fundamentally a child protective statute, intended to insure to every child the schooling he needs to function in the adult world. The problem of truancy in New York City, however, has reached crisis proportions, going beyond the interests of the individual child to have an economic and social impact on the life of the entire city. Statistics compiled in 1983 revealed that more than one third of New York City high school students were chronically absent from school without excuse. That most of these under-educated young people are unemployable upon leaving school is self-evident. The correlation between school failure and juvenile crime is also widely recognized, and crime prevention appears to have been the primary purpose for the institution of the Truancy Patrol Program.
New York Times, Jan. 9, 1983, at p 1, col 3.
Crime Prevention: Juveniles as Potential Offenders, 1 Encyclopedia of Crime and Justice 366 (Kadish ed 1983).
See, n 2, supra, at p 172. As the memorandum of truancy, cited above, indicates, the Truancy Patrol Program has enjoyed considerable success in crime prevention, particularly in Staten Island, with a reduction by 34% in felony and misdemeanor complaints during school hours in the 1983/1984 school year compared to the previous school year.
The conduct of the police in exercising crime prevention functions must be subject to close judicial scrutiny because of the inherent potential for abuse. ( People v De Bour, supra.) The duty performed by Officer Farrell as a member of the truancy patrol withstands such scrutiny. Certainly the function performed is properly an executive one, so that the separation of powers is in no way compromised. Neither does the procedure condone or invite free-wheeling police intervention in the lives of juveniles. ( See, People v Collier, 85 Misc.2d 529 [Sup Ct, NY County 1975].) Unlike the police activity in Matter of Musso ( 102 Misc.2d 934 [Fam Ct, Monroe County 1980]), cited by respondent, Officer Farrell's conduct in the present case was a straightforward and circumscribed response to a well-defined and statutorily proscribed activity, truancy.
The instant case is also readily distinguishable from Matter of Michael G. ( 99 Misc.2d 699 [Fam Ct, Rockland County 1979]), where a charge of resisting arrest was not sustained because of the absence of an authorized arrest, an essential element of the crime of resisting arrest. ( People v Harewood, 63 A.D.2d 876 [1st Dept 1978].) Here the charge is not resisting arrest, and the presentment agency need not show a valid criminal arrest; it is sufficient that the presentment agency has proved that Officer Farrell was engaged in the performance of a lawful duty, to wit, the noncriminal detention of respondent for truancy.
The presentment agency having carried its burden of proof at the fact-finding hearing, the matter is set down for disposition on September 17, 1985. The Probation Department and Family Court Clinic are to prepare reports to submit to the court on that date. Respondent's parole is continued to that date.