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MATTER IRENE WALSH (05/26/69)

FAMILY COURT OF NEW YORK, DUTCHESS COUNTY 1969.NY.41717 <http://www.versuslaw.com>; 300 N.Y.S.2d 859; 59 Misc. 2d 917 May 26, 1969 IN THE MATTER OF IRENE WALSH, A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, RESPONDENT *FN* Susanna Bedell, Law Guardian, for respondent. Robert A. MacKennan, Corporation Counsel, for petitioners. Martin Marcus for mother of respondent. David Effron for father of respondent. John R. Heilman, J. Author: Heilman


John R. Heilman, J.

Author: Heilman

 This is a motion brought on behalf of the respondent to have dismissed two certain petitions charging said respondent with being a juvenile delinquent. These petitions arise out of the same set of circumstances, one petition charging the respondent with acts which, if done by an adult, would constitute a crime in violation of section 140.05 of the Penal Law of the State of New York; the other charging the respondent with acts which, if done by an adult, would constitute crimes in violation of subdivision 2 of section 145.00 and sections 145.25 and 155.25 of the Penal Law of the State of New York.

The motion to dismiss the petitions is grounded in the contention that "they fail to state a cause of action, and they fail to allege what, if any, section of the Penal Code would have been violated had the respondent been a person over the age of sixteen (16) years; and on the additional ground that the petitions, on the face of them, show that the information of petitioners was based on admissions obtained from the respondent in violation of the Family Court Act of the State of New York, and in violation of respondent's rights under the fourth, fifth, sixth and fourteenth Amendments of the Constitution of the United States."

The petitions do state the sections of the Penal Law which would have been violated had the respondent been over the age of 16 years, and this is now conceded by the respondent.

The contention of the respondent that the petitions fail to state "a cause of action" is deemed by the court to be a contention that the petitions are insufficient as a matter of law because they are based upon information and belief, unsupported by facts, sources or grounds.

Although the Family Court is not a criminal court in the nature of its operations, certain of its procedures are quasicriminal in nature, and to that extent the court is bound to protect the constitutional rights of the respondent. (Matter of Gault, 387 U.S. 1; Matter of Gregory W., 19 N.Y.2d 55.)

The court, however, is not bound by the strict rules of the Code of Criminal Procedure of the State of New York. (Code Crim. Pro., § 11; Matter of Rust, 53 Misc. 2d 51; Matter of Williams, 49 Misc. 2d 154; Matter of Rooney, 48 Misc. 2d 890; Matter of Anonymous, 37 Misc. 2d 827.)

Section 165 of the Family Court Act provides that, where not prescribed in the Family Court Act, methods of procedure prescribed in CPLR shall apply to the extent that they are appropriate. They are not appropriate to the instant question.

Section 731 of the Family Court Act sets forth the allegations necessary in a juvenile delinquency petition. The petitions in the instant cases meet the requirements of that section.

The only questions before this court, therefore, are whether the requirements of sufficiency of an information in a criminal case are applicable to a petition for juvenile delinquency in Family Court, and if so, whether the instant petitions meet these requirements.

By definition, a juvenile delinquent is "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." (Family Ct. Act, § 712.) To charge an adult with a crime, an information or indictment must comply with statutory requirements. Failure of such compliance warrants dismissal of the criminal charge. No less should be required of a petition charging juvenile delinquency. This can be done without losing the fundamental purpose of Family Court, but still protecting the constitutional rights of the juvenile respondent.

The philosophy and objective of Family Court was set forth at its inception. (See Family Court Act Legislative Report, McKinney's Sess. Laws, 1962, pp. 3428, 3430.) as pointed out in Matter of Rust (supra., p. 54) "Since the adoption of the Family Court Act, the practice and procedure in this court has been changed radically to provide 'a due process of law' for juvenile cases (Family Ct. Act, § 711)".

Decisions of high courts of the Nation and State evidence the fluid status of Family Court in the criminal and civil procedures. Matter of Gault approached for juveniles the Miranda standards for adults. The New York State Court of Appeals by a 4-3 decision in Matter of Samuel W. (24 N.Y.2d 196 [March 6, 1969]) rejected the standard of criminal law of proof beyond a reasonable doubt in juvenile delinquency fact-finding hearings, holding that a preponderance of the evidence was the proper standard. The Legislature, by the recent enactment of chapter 264 of the Laws of 1969 adding a new article 10 to the Family Court Act, effective June 1, 1969, has provided for the initiation of the District Attorney into Family Court matters, requiring that he represent abused children "during all stages of the proceedings" (§ 1016).

It is the opinion of this court that fair treatment and due process for persons charged with being juvenile delinquents require that the standards for sufficiency of an information in a criminal case ...


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