In the Matter of Jared J. P. A Person Alleged to be a Juvenile Delinquent.
Victor Civitillo, ACA Dutchess County Attorney's Office Diane Foley, Esq. Guardian-at-Litem for Respondent
Carl Chu, Esq. Attorney for the Respondent
Joan S. Posner, J.
On February 19, 2013, the Presentment Agency (agency) filed a petition against the respondent (DOB: 6/7/1997), pursuant to Article 3 of the Family Court Act alleging that he committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the third degree, in violation of penal law §110/120.00(1), a B misdemeanor and menacing in the third degree, in violation of penal law §120.15, also a B misdemeanor. The petition alleges that on October 22, 2012 the respondent attempted to cause physical injury to his mother and other members of his family and menaced them. The agency seeks an adjudication that he is a juvenile delinquent.
At the initial appearance on February 28, 2103, the Court (Sammarco, J. ) appointed a guardian ad litem, based upon the representation by respondent's attorney that respondent was diagnosed with autism and did not understand what was occurring. Respondent was released under the supervision of the Probation Department (RUS). The Court also issued a limited temporary order of protection on behalf of Rebecca P. (his mother), Judith M. (his grandmother), Alexis P., Brianna P. and Jillian P. (his siblings).
In June 2013, respondent's local school district referred him for an intake interview with the S. School, a residential therapeutic educational institution located in Rockland County. He was accepted and placed there by the school district and has had periodic home visits with his mother, grandmother and siblings since that time.
On August 23, 2013, the agency filed a motion pursuant to Family Court Act §322.1(1) for an order directing that respondent be examined by two psychiatrists as defined in CPL §710.30 to determine whether he is an incapacitated person (motion No.1). The application is based upon his medical and educational records; his diagnosis of autism and with "various other problems related to his brain"; and the fact that at his attorney's request, a guardian ad litem had been appointed for him.
The guardian ad litem opposes the agency's motion and filed a motion to dismiss the proceeding in furtherance of justice (FCA §315.2). In support of dismissal, she asserts that the agency did not commence this juvenile delinquency proceeding until February 19, 2013, almost four months after the alleged incident; since February 2013 respondent has been receiving necessary services and is doing well at the S. School. She also argues that there is no need for further Court intervention. The respondent's mother has clearly indicated on the record that she does not wish to pursue the juvenile delinquency proceeding and that to do so would be detrimental to him and other family members.
The guardian ad litem argues that the information presented to the Court indicates that various professionals have, over many years, recommended that respondent be placed in a residential therapeutic school setting. However, until recently the school district instead had respondent in a BOCES day program. He is now currently in an appropriate therapeutic residential school, where he is thriving. She argues that a consideration of the factors under Family Court Act §315.2 supports dismissal of the proceeding in the interest of justice.
The agency opposes the motion to dismiss on the grounds that the allegations are serious and asserts that the police responded to nine domestic calls at respondent's home between December 19, 2009 and January 28, 2013.  The agency alleges that respondent has significant mental health needs and requires specialized educational services and mental health treatment. As a result, the agency asserts that if the juvenile delinquency matter proceeded to final disposition the Court would have to find that respondent requires supervision, treatment or confinement.
The agency concedes that the complainants are unwilling to cooperate with the prosecution of the juvenile delinquency proceeding but argues that regardless they need to be protected. The agency argues that if respondent is discharged from his current educational facility he may reside with the family at some point in the future and could act out aggressively.
The respondent's attorney did not submit any papers with respect to either motion but repeatedly stated on the record that he support dismissal of the proceeding in furtherance of justice and that its continuation would serve no useful purpose and result in an injustice.
Pursuant to FCA §315.2, a court may dismiss a juvenile delinquency petition in the interest of justice at any time if it finds that "even though there may be no basis for dismissal as a matter of law, such dismissal is required as a matter of judicial discretion by the existence of some compelling further consideration or circumstances clearly demonstrating that a finding of delinquency or continued proceedings would constitute or result in injustice".
In making such a determination the court must consider the following factors: (a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interest of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose (FCA § 315.2). At least one of the factors must be readily ...