The opinion of the court was delivered by: SWEET
In an opinion of September 4, 1981, I reserved decision on the government's motion to transfer defendants R. S. and J. S. to adult status pursuant to 18 U.S.C. § 5032. A hearing was held on September 11, 1981 to provide counsel with a second opportunity to present evidence and to cross-examine the government's witnesses. After consideration of all the evidence before me and of the legal arguments made, I hereby grant the government's motion to transfer R. S. and J. S. to adult status.
As mentioned in the earlier opinion in this action, the analysis of the Juvenile Delinquency statute and the conclusion reached by this court "should be informed both by an awareness of the goal of rehabilitation and the premises underlying the rehabilitative ideal and by an awareness of the congressional concern about the threat to society posed by juvenile crime." 525 F. Supp. 101 at 103 (S.D.N.Y.1981). The factors enumerated in 18 U.S.C. § 5032 are discussed in light of this principle.
With regard to defendant R. S.:
1) Age. R. S. was born on January 27, 1963. The offenses charged in the juvenile information are alleged to have occurred on January 2, 1981, only twenty-five days before R. S.' eighteenth birthday.
2) Social Background. R. S. was the second of his mother's four out of wedlock children. His mother has never married and his father, after frequent periods of incarceration, returned to Puerto Rico in 1974. His father has not supported the family and has had only minimal contact with the defendant. R. S. resides with his mother, with one brother, a step-sister, and Mr. P. who has been involved with his mother since 1976. R. S. is reported to resent Mr. P."s presence, and communication between them is said to be negligible. R. S.' older brother has been serving in the United States Army for two years.
Defendant's mother reported that R. S. has been a management problem at home and at school since the age of six. In fifth grade R. S. pushed a teacher down the stairs. Additionally, R. S. had the habit of setting fires in the home, causing an aunt who was residing in the home to leave out of fear. At age eleven, R. S. ran away from home for two weeks, reportedly staying with friends. It may well be, as urged by defense counsel, that these incidents, are not as unusual for a child in this environment as for one who is more protected and secure; nonetheless there are some indications of hostility, a lack of family structure, and an inability to respond to supervision.
R. S. has been involved with Ms. B. for approximately two years and fathered her child, who was born on December 27, 1980. Ms. B. and the baby live in Puerto Rico. According to R. S., he planned to marry her after graduation from high school, but Ms. B. has not returned to New York. R. S. supported his son from money sent to R. S. on a monthly basis by his older brother and from R. S.' own unaccounted for resources.
3) The nature of the alleged offense. The details of the attempted bank robbery with which R. S. is charged is described in this court's prior opinion (Id. at pp. 105-106). It is sufficient to note that when law enforcement agents ordered four alleged bank robbers not to move R. S., who was armed with a small-barreled revolver, fled. While fleeing, R. S. threw the weapon over his shoulder into the front yard of an adjacent house, to the street. After R. S. was apprehended, the gun that he was carrying, a loaded .38 caliber revolver, was retrieved.
4) The extent and nature of R. S.' prior delinquency record. R. S. was arrested on September 27, 1980 in the Bronx on a charge of manufacturing weapons and resisting arrest. Defense counsel has indicated that the weapons charge was dismissed on the ground that testimony to the grand jury was insufficient.
5) Present intellectual development and psychological maturity. The written report by the psychiatrist who examined R. S. establishes that although R. S.' intellectual capabilities are limited, there is no impairment of his capacity for logical and rational thought. Additionally, he is characterized in the psychological report, as a suspicious and guarded individual and in the probation report, as a street-wise young man.
R. S.' school records indicate that his poor attendance record paralleled poor scholastic standing during high school. In seventh and eighth grade his grades were adequate and his attendance record was good. On February 5, 1981, before completing the eleventh grade, R. S. was discharged from high school as overage.
6) The nature of past treatment efforts and R. S.' response to such efforts. After being discharged from high school R. S. had the opportunity of participating in an Outreach Program which is an alternative educational approach toward obtaining a GED for individuals who have dropped out of high school. According to his mother, R. S. did not participate in this program.
7) The availability of programs designed to treat the juvenile's behavioral problems. At the hearing on the transfer motion, a probation officer who had investigated the availability of programs for juveniles in the federal system testified that juveniles cannot be handled within the federal prison system, but are boarded in state facilities. She further testified that there are no such facilities in the State of New York that would be available for ...