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MATTER ABRAHAM VERGARA v. CRIMINAL COURT CITY NEW YORK (03/10/69)

SUPREME COURT OF NEW YORK, CRIMINAL TERM, KINGS COUNTY 1969.NY.40765 <http://www.versuslaw.com>; 298 N.Y.S.2d 422; 59 Misc. 2d 134 March 10, 1969 IN THE MATTER OF ABRAHAM VERGARA, PETITIONER,v.CRIMINAL COURT OF THE CITY OF NEW YORK, YOUTH OFFENSES PART III, ET AL., RESPONDENTS Cesar A. Perales and Arnold Rothbaum for petitioner. Eugene Gold, District Attorney, in person (William I. Siegel of counsel), for respondents. Vincent D. Damiani, J. Author: Damiani


Vincent D. Damiani, J.

Author: Damiani

 In this article 78 proceeding the petitioner, a 16-year-old junior high school student seeks an order prohibiting the respondents Criminal Court of the City of New York and the District Attorney of Kings County from trying him on a charge of assault in the third degree made by a teacher on the ground that the said court is without jurisdiction and the proceeding against him must be originated in the Family Court.

This court makes no determination as to the facts and the District Attorney concedes that the issue involved is one of law. By way of background, it appears that the teacher, at the time involved, was in charge of the hallways monitor system and was attempting to enforce the school rules and regulations. Allegedly the petitioner used obscene and abusive language and when reprimanded assaulted the teacher. A criminal summons was obtained and served on the petitioner ordering him to appear in the Criminal Court to answer a charge of assault in the third degree. On the return day, after hearing both sides, the court denied petitioner's applications for a dismissal of the summons and that the matter be handled through the guidance procedures pursuant to section 3214 of the Education Law, and ordered that a complaint be drawn. The endorsement by the court on the original papers states: "Transferred to Part 3. Def't. 16 years old."

The complaint against the petitioner alleges that the petitioner-defendant committed the crime of assault in the third degree in that the defendant, with intent to cause physical injury to another person, caused physical injury to a person, and in that "the defendant did grab the complainant around the neck and that the defendant did then swing a heavy door check at deponent missing him with same. That said deponent was treated by his own doctor for injuries."

The school authorities suspended the petitioner and scheduled a guidance conference. This was in accordance with section 3214 (subd. 6, par. b) of the Education Law and General Circular No. 16, 1965-1966 of the Board of Education. Special Circular No. 78, 1966-1967 issued by the Superintendent of Schools expressly states: "Physical assaults against any teacher are not to be tolerated and shall result in the suspension of the pupil." In any event, the application before this court deals with the matter of jurisdiction and not suspension. By an order made by a Justice of this court the respondents and the District Superintendent were stayed from taking any proceedings until the determination of this application.

The petitioner's argument may be summarized as follows. A student who commits the crime of assault in the third degree on a teacher is disorderly; a disorderly minor is a school delinquent (Education Law, § 3214); a minor who commits assault in the third degree is a school delinquent; a school delinquent must be proceeded against in the Family Court (Education Law, § 3232); hence only the Family Court and not the Criminal Court has jurisdiction.

This court rejects that argument. Petitioner erroneously assumes that he is not and cannot be anything but a school delinquent. Petitioner gives no consideration to the factor of his age, the difference between school delinquency and the crime of assault in the third degree, and the lack of jurisdiction in the Family Court to try and determine a charge of assault in the third degree.

Part I of article 65 of the Education Law deals with compulsory education (§ 3205, subd. 3); school delinquency (§ 3214) and employment certificates (§ 3216 et seq.). A reading of section 3214 discloses the legislative scheme. Subdivision 1 thereof provides that a "school delinquent" is "a minor under seventeen years of age required by any of the provisions of part one of this article to attend upon instruction, who is a habitual truant from such instruction or is irregular in such attendance or insubordinate or disorderly during such attendance". (Emphasis supplied.) Subdivision 5 provides for a hearing to determine, with the consent of the person in parental relation, whether he shall attend a special day school or be confined in a parental school. It is at this point that the statute provides for court procedures if a person in parental relation refuses to consent or if, in effect, such person has no control over the school delinquent. Subdivision 1 of section 3232 (formerly § 3227) provides, and this is the section relied upon by the petitioner: "Courts of special sessions and magistrates' courts shall have concurrent jurisdiction with family courts to hear, try and determine charges of violation of the provisions of part one of this article, within their respective jurisdiction. * * * In the city of New York family courts shall have exclusive original jurisdiction in such proceedings. Notwithstanding other provisions of law, family courts shall have jurisdiction, for the purposes of part one of this article, of minors under the age of eighteen." (Emphasis supplied.)

The statute further provides for the suspension of a minor who is insubordinate or disorderly, but in such case immediate steps must be taken for his commitment or for his attendance upon instruction elsewhere. Obviously it was the intent of the Legislature to give the Family Court jurisdiction to enforce the provisions of part I of article 65 with respect to "school delinquents"; otherwise the school authorities would have no tribunal to enforce their determinations.

The Family Court is one of limited jurisdiction, its jurisdiction being limited by the New York Constitution (Matter of Burns v. Burns, 53 Misc. 2d 484, 487). By constitutional amendment, the Family Court was created and granted jurisdiction over "crimes and offenses by or against minors". (N. Y. Const., art. VI, § 7, subd. a; art. VI, § 13, subd. b.) The Legislature implemented the constitutional amendment by the passage of the Family Court Act effective September 1, 1962. Subdivision (a) of section 712 of the Family Court Act provides that: "'Juvenile delinquent' means a person over seven and less than sixteen years of age who does any act which, if done by an adult, would constitute a crime." (Emphasis supplied.) (See Matter of Anonymous, 26 A.D.2d 673.) The age at the time of the commission of the delinquent act is controlling (§ 714). The petition in a delinquency proceeding must allege that the respondent was a person under the age of 16 years (§ 731).

The petitioner in this proceeding is not a person under the age of 16 years, and cannot be a juvenile delinquent within the meaning of the statute. The Family Court is not a criminal court and section 3232 of the Education Law gives it jurisdiction only as to matters enumerated therein. (Matter of Wilson v. Family Ct., 46 Misc. 2d 478.) It does not have jurisdiction to try a person 16 years of age charged with the crime of assault in the third degree (see People v. Stevenson, 41 Misc. 2d 542). On the other hand, the Criminal Court of the City of New York has jurisdiction to hear and try all charges of misdemeanor and offenses of a grade less than misdemeanor (N. Y. City Crim. Ct. Act, § 31) and section 913-e of the Code of Criminal Procedure dealing with youthful offenders defines a youth as one who has reached 16 years or over, but has not reached 19 years. It is clear, therefore, that the Criminal Court has jurisdiction of a minor who commits a misdemeanor -- assault in the third degree -- and who has reached 16 years and is under 19 years.

The petitioner contends, however, that the Criminal Court has no jurisdiction over a 16-year-old school delinquent where the charge of assault in the third degree arose out of the same facts upon which the determination of school delinquency was made. That contention is without merit. There is a substantial difference between the conduct of a school delinquent as defined in section 3214 of the Education Law and an assault in the third degree as defined in section 120.00 of the Penal Law. The District Attorney points out that a school delinquent is one who is habitually truant, habitually insubordinate, or habitually disorderly, and that "disorderly" has a recognized meaning in the law. "Disorderly" means such acts as are defined to be disorderly conduct (Penal Law, § 240.20) and harassment (Penal Law, § 240.25). Under the Education Law it also includes habitual misconduct and disruptive behavior in school as opposed to the standard of good conduct. "'Misconduct' perhaps refers more particularly to demeanor within the walls of the institution or in connection with the ordinary activities of student life * * * But the implied stipulation of good conduct [is] variable in its meaning and incapable of precise definition as that term must always be * * * (Samson v. Trustees of Columbia Univ., 101 Misc. 146, 150, affd. 181 App. Div. 936)." (Matter of Carr v. St. John's Univ., 17 A.D.2d 632, 634.)

The purpose of section 3214 is to enable school authorities to maintain discipline in the school and to require students to abide by rules and regulations. Without such authority the educational system would degenerate into chaos.

In contrast, assault in the third degree is a Class "A" misdemeanor (Penal Law, § 120.00) and is a crime ...


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