In re Narvanda S., A Person Alleged tobe a Juvenile Delinquent, Appellant.
Tamara A. Steckler, The Legal Aid Society, New York (Elana E. Roffman of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for presentment agency.
Mazzarelli, J.P., Acosta, Renwick, Richter, Gische, JJ.
Order of disposition, Family Court, New York County (Allen G. Alpert, J.), entered on or about January 17, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute two counts each of the crimes of sexual abuse in the second and third degree and forcible touching, and placed him on probation for a period of 12 months, reversed, on the law, the facts and as an exercise of discretion in the interest of justice, without costs, the first, third, and fifth counts of the petition dismissed, the delinquency finding and dispositional order vacated, and the matter remanded to Family Court with a direction to order an adjournment in contemplation of dismissal pursuant to Family Court Act § 315.3(1) nunc pro tunc to January 17, 2012.
Although the trial court made no specific findings of fact, the record reveals that the complaining witness testified that on October 18, 2010 at approximately 11:45 a.m., she went to the main office where she and appellant attended school. She saw appellant inside. On the day of the occurrence, the complaining witness was 13 years old and appellant was 12 years old. Although she and appellant had mutual friends, they had not previously talked to each other until that day when, in the school office, he asked her to be his girlfriend. The complaining witness testified she ignored his request and then left the office by herself. Another witness, a paraprofessional assigned to the complaining witness, testified that she observed the two children talking casually in the office and that they left the office together, still engaged in conversation.
It is not disputed that while the complaining witness and appellant were in the public hallway, appellant grabbed her from behind. No one else was in the hallway at the time. The other students were expected to return shortly to their classrooms from the lunch break. The complaining witness testified that appellant "dragged" her down the hallway, explaining that he had grabbed her backpack which stayed between them and that she struggled to shrug it off her back, but was held back by his tugging down on it. Her feet never left the ground. As she tried to get away, appellant reached around and "touched" and "squeezed" both of her breasts and the right side of her buttocks. He also attempted to kiss her and ignored her as she told him, "I need to go to class. I don't like you. No." It was then that appellant asked the complaining witness for "a hug or anything and I'll let you go." She hugged appellant just to get away from him and then went directly to her math class down the hall, where she sat, upset. When her paraprofessional entered the room, she explained what had happened in the hallway. The entire incident in the hallway lasted no more than five minutes.
As the presentment agency concedes, there was no basis for the trial court to have made separate factual findings as to six separate misdemeanor offenses based on appellant's contact with the complaining witness's breasts and buttocks, because the offending conduct involved "a single, uninterrupted occurrence" (People v Alonzo, 16 N.Y.3d 267, 270 ). Accordingly, we dismiss one count each of sexual abuse in the second and third degrees and forcible touching. Nonetheless, the totality of appellant's course of conduct, and his statements to the complaining witness, support the inference that he acted for the purpose of sexual gratification (see e.g. Matter of Najee A., 26 A.D.3d 258 [1st Dept 2006], lv denied 7 N.Y.3d 703 ; Matter of Kenny O., 276 A.D.2d 271 [1st Dept 2000], lv denied 96 N.Y.2d 701 ). The court's findings that appellant committed an act, that, if committed by an adult, would constitute a crime, was, therefore, based on legally sufficient evidence and not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348-349 ).
A juvenile delinquency adjudication, however, requires both a determination that the juvenile committed an act, that, if committed by an adult, would constitute a crime and a showing, by the preponderance of the evidence, that the juvenile needs supervision, treatment or confinement (Family Ct Act §§ 345.1, 350.3, 352.1). Although the seriousness of the juvenile's acts is an extremely important factor in determining an appropriate disposition (see Matter of Alberto R., 84 A.D.3d 593 [1st Dept 2011]), it is not the only factor. The disposition is not supposed to punish a child as an adult, but provide effective intervention to "positively impact the lives of troubled young people while protecting the public" (Matter of Robert J., 2 N.Y.3d 339, 346 ).
While the trial court properly found that appellant committed a delinquent act, there was insufficient support for its decision that appellant needed supervision, treatment or confinement (Family Ct Act §§ 352.1, 350.3). In addition, 12 months probation was not the least restrictive available alternative that would have adequately served the needs of appellant and society (Family Ct Act § 352.2; Matter of Justin Charles H., 9 A.D.3d 316 [1st Dept 2004]).
This was appellant's first and only contact with the juvenile justice system both before and after the incident. Although appellant had 24 absences during the 2010-2011 school year, by the fall of 2011, when the hearing took place, his academic performance had improved and he only had four absences, two of which were attributable to court appearances in connection with the underlying petition. The November 2011 probation report indicates that prior to the incident, appellant had also been associating with some "negative peers" at school, but after the petition was brought, he stopped contact with them. Appellant had no reported history of illegal drug or alcohol use, he was not involved with a gang, and his mother reported that although he sometimes failed do his chores, he adhered to his curfew. She described him as being nice and respectful towards the people in his community which he enjoys. Letters from appellant's school social worker and two of his teachers confirmed his progress in school (80 average) and his regular attendance.
Appellant has been compliant with all court orders and requirements, including the temporary order of protection issued in favor of the complaining witness who attends school with him. He has kept all scheduled court appearances and been cooperative with the probation officer and psychologist. Appellant's mother was present at all court appearances with appellant and she too has been fully cooperative with the probation officer and the psychologist.
Dr. Ables of the Bronx Psychiatric Center reported to the court that appellant's mother agreed that her son would benefit from a program, although she was unsure what had actually transpired at school. Dr. Ables also reported that both appellant and his mother "indicated they would make certain [appellant] attends all scheduled treatment appointments." Dr. Ables recommended a "minimum of 18 months probation supervision" for proper assessment and completion of the program that he offered.
Prior to adjudicating appellant a juvenile delinquent, appellant's counsel moved for an adjournment in contemplation of dismissal with conditions, as well as other less restrictive alternatives to probation. That application was denied, and the court subsequently adjudicated appellant a juvenile delinquent, imposing a disposition of 12 months probation. The court stated that appellant needs the "services provided by probation and the supervision provided by Dr. Ables, " without any explanation why, if the court believed this to be so, it then deviated from Dr. Ables' recommended probation period. The dissent's conclusion, that Dr. Ables' program can be completed in 12 months, is contrary to what Dr. Ables actually reported . The 12 months of probation is not related to anything in this record. In any event, given appellant and his mother's willingness to voluntarily participate in a recommended program, a lengthy period of court supervision is unnecessary. Monitoring appellant's voluntary compliance could have been accomplished under an adjournment in contemplation of dismissal (see Matter of Tyttus D., 107 A.D.3d 404 [1st Dept 2013]).
In deciding the least restrictive alternative, the court must also consider the child's background, the stability of the child's home life, the adult supervision available in the home, the child's age at the time of the incident and the progress the child has made since the incident (see Matter of Besjon B., 99 A.D.3d 526 [1st Dept 2012]; Matter of ...