APPEAL by the presentment agency, in a juvenile delinquency proceeding pursuant to Family Court Act article 3, from an order of dismissal of the Family Court dated July 25, 2008, and entered in Kings County (Lee H. Elkins, J.), which, upon an order also dated July 25, 2008, granting the motion of the respondent, Dylan C., to dismiss the petition, dismissed the petition.
The opinion of the court was delivered by: Eng, J.
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.
A. GAIL PRUDENTI, P.J., HOWARD MILLER, RANDALL T. ENG and ARIEL E. BELEN, JJ.
The juvenile justice system in New York State has undergone fundamental change over the last several decades and has developed a variety of non-secure detention facilities intended to promote rehabilitation. These facilities stand in stark contrast to secure detention facilities administered primarily for the purposes of confinement and punishment. The issue we are called upon to decide on this appeal is whether a non-secure facility for the placement of alleged and adjudicated juvenile delinquents is a "detention facility" within the scope of Penal Law § 205.10, which sets forth the elements of the crime of escape in the second degree. For the reasons which follow, we conclude that such non-secure detention facilities, which did not exist when the Penal Law provisions relating to the crime of escape in the second degree were enacted, do not fall within the intended ambit of Penal Law § 205.10. Accordingly, the Family Court properly granted the motion of the respondent, Dylan C., to dismiss the petition alleging that he had committed an act which, if committed by an adult, would have constituted escape in the second degree, and properly dismissed the petition. The relevant facts are largely undisputed. On November 1, 2007, a petition was filed in the Family Court, Queens County, charging that Dylan C., who was then 15 years old, had committed acts which, if committed by an adult, would have constituted several crimes, including robbery in the second degree. Upon the filing of the Queens County delinquency petition, Dylan C. was paroled to his mother. However, in January 2008, Dylan C. was suspended from school for smoking marijuana, and in March 2008 he was placed on "pre-suspension" for another incident. As a result of Dylan C.'s conduct, on March 19, 2008, the Family Court issued an order pursuant to Family Court Act § 320.5 remanding him to the custody of the New York City Department of Juvenile Justice for placement in a non-secure detention facility until the date scheduled for his fact-finding hearing. The remand order included findings that detention was necessary because there was a serious risk that Dylan C. would commit an act constituting a crime prior to the next court date, and that continued placement at home would not be in his best interest because he was beyond parental control. That order further provided that if Dylan C. violated the rules of non-secure detention, he could be transferred to a secure facility without further court action.
Pursuant to the remand order, Dylan C. was immediately placed in a non-secure detention facility located in Brooklyn. However, on the following evening, March 20, 2008, Dylan C. allegedly absconded from the facility by running out a side door. An alarm sounded, and a child care worker pursued Dylan C., catching up to the youth several blocks away and returning him to the facility.
About two months later, on May 16, 2008, the presentment agency (hereinafter the agency) filed a new delinquency petition against Dylan C. in the Family Court, Kings County, alleging that he had committed an act which, if committed by an adult, would have constituted the crime of escape in the second degree in violation of Penal Law § 205.10. Dylan C. subsequently moved to dismiss the Kings County petition, arguing that a non-secure facility of the type which houses both alleged and adjudicated juvenile delinquents, and alleged and adjudicated persons in need of supervision (hereinafter PINS), was not a "detention facility" within the purview of the escape statute. In support of his position, Dylan C. relied upon the Court of Appeals' decision in People v Ortega (69 NY2d 763), which held that a defendant who had been found not legally responsible for a crime due to mental illness could not be found guilty of escape for absconding from a non-secure psychiatric facility. He also cited cases holding that PINS children could not be charged with escape for absconding from non-secure detention (see e.g. Matter of Sylvia H., 78 AD2d 875; People v DuPont, 179 Misc 2d 79; Matter of Freeman, 103 Misc 2d 649).
In opposition to the motion, the agency acknowledged that non-secure facilities are less restrictive than secure facilities, but maintained that non-secure facilities fall within the ambit of the Penal Law because the juveniles in such facilities are nevertheless in detention. The agency further contended that Ortega was distinguishable because the defendant in that case was confined to a non-secure psychiatric facility for the purpose of therapy, while Dylan C. was confined because of the risk that he would commit another act constituting a crime. The agency also urged the court to find that case law involving PINS children was inapposite because such children are placed in detention facilities for the purpose of treatment and rehabilitation rather than punishment.
In the order of dismissal appealed from, the Family Court, upon an order dated July 25, 2008, granting Dylan C.'s motion to dismiss the petition, dismissed the petition, concluding that the non-secure facility from which he absconded was not a detention facility within the scope of the escape statute because it was not a place used for the confinement of juveniles. The court also rejected the agency's position that the purpose for which Dylan C. was placed was dispositive of the issue of whether he was confined, and noted that, in any event, all detention facilities housing juveniles are intended to be therapeutic. The agency now appeals, continuing to maintain that a non-secure facility falls squarely within the Penal Law's definition of detention facility, and that the Court of Appeals' decision in Ortega is distinguishable. We affirm.
We begin our analysis by examining the relevant statutory provisions, and considering the historical context in which they were enacted. Family Court Act § 320.5, which authorizes the detention of an alleged juvenile delinquent pending a fact-finding hearing, was originally enacted in 1962, when the only available form of detention for young people in this State was secure detention (see Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 320.5, at 25). Three years later, in 1965, the Legislature enacted Penal Law § 205.10(1), which provides that a person is guilty of escape in the second degree when he or she "escapes from a detention facility" (emphasis added). The corresponding definition of "detention facility," which has remained essentially unchanged since 1965, is "any place used for the confinement, pursuant to an order of a court, of a person (a) charged with or convicted of an offense, or (b) charged with being or adjudicated a youthful offender, person in need of supervision or juvenile delinquent, or (c) held for extradition or as a material witness, or (d) otherwise confined pursuant to an order of a court" (Penal Law § 205.00). Penal Law § 205.00(1) was last amended in 1972 to substitute the phrase "person in need of supervision" for "wayward minor."
In the decades following the enactment of these statutory provisions, the juvenile justice system has evolved to place increased emphasis on the education and rehabilitation of troubled youths, with the goal of helping them become contributing members of society when they reach adulthood. Spearheaded by the Juvenile Justice and Delinquency Act of 1974, which encourages community-based alternatives to secure detention (see 42 USC § 5601 et seq.), non-secure detention facilities began to proliferate across New York in the late 1970s and 1980s. With this change in focus, "[d]etention formerly administered solely for the purpose of punishment became an opportunity for the provision of services" (NYC Department of Juvenile Justice - - Making a Difference for 20 Years: 1979-1999,' http://www.correctionhistory.org/html/chronicl/djj/djj20yrs2.html [New York Correction History Society, Roffe], accessed July 29, 2009).
Today, a wide variety of non-secure detention facilities exist, including family boarding homes, agency-operated boarding homes, and group care facilities (see 9 NYCRR 180.3[d]). These facilities are designed to provide structured residential care for alleged and adjudicated juvenile delinquents in a supportive, family-like environment (see Juvenile Detention Association of New York State, Inc., http://jdanys.org; http://www.nyc.gov/html/djj/html/non-secure.html, accessed July 29, 2009). By statute, such non-secure facilities must be "characterized by the absence of physically restricting construction, hardware and procedures" (Family Ct Act § 301.2). Discussing the current state of New York's juvenile detention network, a leading commentator has observed that the term "non-secure detention" is itself misleading because "the child is not being locked up, but rather placed temporarily in an open setting" (Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 320.5, at 25). Thus, while the child "is uprooted from his home environment, perhaps because of parental deficiencies or perhaps because the court concludes that remaining in the local community will foster the commission of an additional crime, the result is far less restrictive than secure detention" (id.). In contrast, in secure detention facilities, which are "characterized by physically restricting construction, hardware ...