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In re Alrick J.

January 13, 2009

IN RE ALRICK J., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT. PRESENTMENT AGENCY


Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about November 28, 2007, which adjudicated appellant a juvenile delinquent, upon his admission that he had committed an act constituting unlawful possession of weapons by persons under 16, and imposed a conditional discharge for a period of 12 months, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, McGuire, Moskowitz, Renwick, JJ.

The petition charged appellant with acts that, if committed by an adult, would have constituted two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1],[2]), menacing in the second degree (Penal Law § 120.14), menacing in the third degree (Penal Law § 120.15) and unlawful possession of weapons by a person under 16 years of age (Penal Law § 265.05). Rather than proceed to a fact-finding hearing, appellant admitted that he had committed the act alleged in count five of the petition charging unlawful possession of a weapon by a person under 16. As is clear from the plea allocution, the petition and a stipulation between the parties, the "dangerous knife" appellant admitted that he had possessed in a public park was a gravity knife.

We reject appellant's contention that Family Court improvidently exercised its discretion in imposing a conditional discharge rather than granting his request for an adjournment in contemplation of dismissal. Family Court certainly was not required to grant that request "merely because this was [appellant's] first brush with the law" (Matter of Nikita P., 3 AD3d 499, 501 [2004] [internal quotation marks omitted]; see also Matter of Rufino M., 168 AD2d 385 [1990] [rejecting claim that an adjournment in contemplation of dismissal should have been granted and observing that "the fact that this was appellant's only contact with the law is not dispositive"]). Unquestionably, the possession of a gravity knife or any dangerous knife by a juvenile in a park is a serious matter. Thus, this case does not reduce to "an act of thoughtlessness committed by an adolescent fooling around with some friends" (Matter of Justin Charles H., 9 AD3d 316, 317 [2004]). Rather, appellant "committed a type of misconduct that in and of itself supports the conclusion that a conditional release, at the very least, was appropriate" (Matter of Nikita P., 3 AD3d at 500 [rejecting claim that an adjournment in contemplation of dismissal should have been granted where juvenile was found to have committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree]).

Moreover, as Family Court was aware, the recommendation of the Department of Probation was for probation, a more restrictive disposition than the conditional discharge Family Court imposed. Family Court expressly stated that the reason it was "not going for the ACD is the allegations are very serious." That observation by Family Court is entirely accurate. In essence, the sworn allegations of the petition charged appellant not only with possessing a "dangerous knife" in a park but with displaying the knife to the complainant and thrusting the knife at him, after having told the complainant that he could get his friends to "beat [him] up." The report of the Department of Probation referred to both the complainant's sworn account of the foregoing allegations and the sworn statement of a police officer that he had recovered a gravity knife from appellant's person. Also before Family Court at the outset of the dispositional hearing were appellant's school records, court exhibit 1. Those records reveal that between September 4 and November 17 of the Fall 2007 semester, appellant was absent on 8 days, and that during the prior academic year, appellant was late on 55 of the 186 days and absent on 14 days. This troublesome history of absences and tardiness also supports Family Court's determination that an adjournment in contemplation of dismissal was not an appropriate disposition.

The dissent is not persuasive. None of the cases it cites in which this Court concluded that an adjournment in contemplation of dismissal should have been granted involved the possession of a dangerous weapon. The serious nature of the criminal conduct that appellant admitted he had committed, possession of a gravity knife, cannot be questioned. Even though appellant also admitted possessing this dangerous knife in a public park, the dissent writes with considerable understatement that "the crime appellant admitted to committing . . . is not to be condoned."

Instead of coming to grips with the seriousness of the criminal conduct appellant admitted that he had committed, the dissent emphasizes that appellant did not also admit the truth of other sworn allegations of the petition, i.e., that after threatening to have the complainant beaten up, appellant displayed the knife and thrust it at the complainant. Thus, the dissent contends that Family Court's decision to impose a conditional discharge - hardly an onerous disposition - "is deficient in that it is predicated upon sworn allegations that were never established at the Family Court proceeding." Apparently, the dissent is of the view that in determining the appropriate disposition, Family Court was required to ignore the allegations of even more serious criminal conduct by appellant. The dissent cites no authority for that proposition.

Ironically, however, the dissent does apparently credit and rely on at least a portion of appellant's version of the disputed facts when it states that "appellant neither assaulted nor injured anyone, and he denied committing or attempting to commit any violent act" (emphasis added). This ignores the conflicting allegations in the petition charging petitioner with thrusting the gravity knife at the complainant after threatening to get his friends to assault him. The dissent fails to explain why it is free to credit the appellant's unsworn claims made when he was interviewed by the Probation Department but Family Court was required to discredit or ignore the complainant's sworn allegations.

Moreover, aspects of appellant's unsworn claims to the Probation Department strain credulity. Appellant claimed that he had been carrying the gravity knife in his book bag, after finding it in a park, when his friend threw a football at the complainant, causing the complainant's glasses to fall off. When the complainant approached appellant and his friend, appellant went on, his friend retrieved the knife from appellant's book bag, "pulled it out" on the complainant and then replaced it in the book bag after the complainant left. Thus, although appellant pinned the blame on his unapprehended friend, even appellant admitted that the complainant was physically threatened with the knife. On this account, it is not at all clear why appellant's friend would have known to go into appellant's bookbag to get the gravity knife. Moreover, appellant's claim that after his friend threatened the complainant with the knife, appellant put it back in the bookbag, is at odds with the affidavit of the arresting officer, which was before Family Court and also summarized in the probation report, and stated that the officer recovered the knife from appellant's person. Finally, appellant's version of the facts requires the conclusion that the complainant for some reason falsely inculpated appellant while falsely absolving the person who actually brandished and threatened him with a knife. Certainly, the Probation Department, which recommended probation, did not state that it credited appellant's claims. Nevertheless, and despite the "the-dog-ate-my-homework" quality of appellant's claims, the dissent faults Family Court for not disregarding the complainant's account of what had happened.

The dissent also emphasizes that Family Court should have granted appellant an adjournment in contemplation of dismissal because "[t]here were no further incidents during the four months between this incident and the dispositional hearing" and appellant "insisted that he would never do anything like this again." But a Family Court judge surely is not required to be impressed by, and impose a less restrictive disposition on account of, the mere fact that a respondent is not charged with committing another crime during the pendency of the case, let alone during a period of only four months. Similarly, although the dissent appears to accept and be impressed by appellant's "insiste[nce]," the dissent does not and cannot explain why the Family Court Judge in this case - the Judge before whom, unlike the dissenters, appellant physically appeared - was required to accept and be impressed by it.

As we read the record, Family Court concluded neither that the complainant's allegations that appellant thrust the knife at him and threatened an assault were true nor that they were false. Rather, Family Court simply and sensibly recognized the possibility that these serious allegations were true in determining that appellant required supervision (Family Ct Act § 352.1[1]) and that a conditional discharge was the least restrictive available alternative "consistent with the needs and best interests of the respondent and the need for protection of the community" (Family Ct Act § 352.2[2]). This disposition was prudent for another reason. As Family Court undoubtedly knew, it was more than a possibility that the complainant was physically threatened by someone with a knife; even appellant conceded that this serious act had occurred. The only uncertainty was who did it.

Finally, the dissent is unfair to Family Court, and also falls into self-contradiction, with its repeated assertions that Family Court "relied exclusively on the nature of the crime" in denying an adjournment in contemplation of dismissal. This criticism of Family Court is contradicted by the dissent's position that Family Court also erred in relying on "sworn allegations that were never established at the Family Court proceeding." The criticism is unfair because Family Court expressly noted that appellant's school records were before it as exhibit 1. Given the enormous case loads and difficulties that Family Courts deal with day in and day out, it is hardly surprising that Family Court did not issue a written decision or elaborate at length on all the reasons for its dispositional determination. But the dissent cannot fairly assume either that Family Court did not consider appellant's troublesome school records or that Family Court did not make its determination after a thorough and reasoned review of all relevant facts and information before it (cf. People v Nazario, 253 AD2d 726 [1998]).

Given our conclusion that Family Court appropriately imposed a conditional discharge, we need not and do not address the presentment agency's contention that because Penal Law ยง 265.05 specifies that "[a] person who violates the provisions of this section shall be adjudged a juvenile delinquent" (emphasis added), Family Court was precluded from granting an adjournment in contemplation of dismissal as that procedure is ...


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