Matter of Shabar W.

2007 NY Slip Op 50086(U)

• Court: New York Family Court, Queens County
• Decided: January 19, 2007
• Status: Unpublished

Opinion

Matter of Shabar W. (2007 NY Slip Op 50086(U)) [*1]

Matter of Shabar W.

2007 NY Slip Op 50086(U) [14 Misc 3d 1218(A)]

Decided on January 19, 2007

Family Court, Queens County

Hunt, J.

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 19, 2007

Family Court, Queens County

In the Matter of Shabar W., Respondent,

D-20384/06

Appearances of Counsel: Michael Cardozo, Corporation Counsel (Faith S. Lovell of counsel), New

York City, for Presentment Agency. The Legal Aid Society (Tamara Steckler and Steven Douglas

Levine), New York City, Law Guardian.

John M. Hunt, J.

By amended petition filed on December 6, 2006 respondent is alleged to have committed

acts which, were he an adult, would constitute the crimes of Assault in the Second Degree, Assault

in the Third Degree, Obstructing Governmental Administration in the Second Degree and Resisting

Arrest.^[FN1]

Respondent has moved by supplemental motion for, inter alia, an order dismissing the

amended petition as jurisdictionally defective; an order adjourning the proceeding in contemplation

of dismissal and an order referring the case for adjustment services by the Department of Probation [*2]

The motion is decided as follows.^[FN2]

The branch of the motion seeking dismissal of the amended petition as jurisdictionally

defective is denied. With respect to Count Three of the amended petition, which charges respondent

with an act constituting Obstructing Governmental Administration and Count Two of the amended

petition, which charges him with an act constituting Resisting Arrest, these two crimes were the

subject of the initial petition. Respondent moved for dismissal of these charges in his first omnibus

motion and that motion was denied by this Court in its written order dated December 11, 2006.

Upon review of the supplemental motion filed by respondent and the responding affirmation filed

by the Assistant Corporation Counsel, the Court deems that part of respondent's supplemental

motion seeking dismissal of the counts charging Obstructing Governmental Administration in the

Second Degree and Resisting Arrest to be a motion to reargue that portion of the Court's December

11, 2006 order (see, Civil Practice Law and Rules §2221; Weinstein-Korn-Miller, NY Civ Practice,

vol. 4, ¶2221.04), and upon reargument, the Court is not persuaded that it overlooked or

misapprehended the relevant facts or misapplied any controlling principle of law. Thus, the Court

adheres to its prior decision denying dismissal of the counts charging Obstructing Governmental

Administration in the Second Degree and Resisting Arrest (see, Pahl Equipment Corp. v. Kassis,

182 AD2d 22, 27 [1992]; Bolos v. Staten Island Univ. Hosp., 217 AD2d 643 [1995]; Simon v.

Mehryari, 16 AD3d 664, 665 [2005]). [*3]

The count charging respondent with committing an act which would constitute the crime of

Assault in the Second Degree (Penal Law §120.05 [3]) is jurisdictionally sufficient. The supporting

depositions of School Safety Agent Janet Jean-Baptiste and New York City Police Officer Thomas

Rodriguez establish if true, that respondent acted with intent to prevent the School Safety Agent, a

Peace Officer (Criminal Procedure Law §2.10 [27]), and Police Officer Rodriguez (Criminal

Procedure Law §1.20 [34]), from performing their lawful duties and that as a result of respondent's

actions, Police Officer Rodriguez sustained physical injury within the meaning of Penal Law §10.00

(9) (see, People v. Campbell, 72 NY2d 602, 604 [1988]; People v. Rojas, 97 NY2d 32, 40 [2001];

People v. Coulanges, 264 AD2d 853 [1999], lv. denied 94 NY2d 878 [2000]; People v. Harmon,

264 AD2d 941, 942 [1999]).

While the crime of Assault in the Second Degree under Penal Law §120.05 (3) does not

require proof that the defendant acted with the intent to injure the officer or public servant since it is

a crime of strict liability with respect to the injury (see, People v. Campbell, at 605; People v. Rojas,

at 40; People v. Harmon, at 942), the supporting depositions of School Safety Agent Jean-Baptiste

and Police Officer Rodriguez establish, if true, that defendant acted recklessly within the meaning of

Penal Law §15.05 (3) (see, People v. Van Nostrand, 85 NY2d 131, 135 [1995]), and that as a result [*4]

of respondent's reckless conduct Officer Rodriguez sustained physical injury. Accordingly, the

count charging respondent with commission of an act constituting Assault in the Third Degree (P.L.

§120.00 [2]) is also jurisdictionally sufficient (e.g., Matter of Robert W., 212 AD2d 1005, 1006

[1995], lv. denied 86 NY2d 702 [1995]; People v. Chatman, 289 AD2d 132 [2001], lv. denied 98

NY2d 673 [2002]).

The branch of respondent's motion for an order referring this case to the Department of

Probation for adjustment services pursuant to Family Court Act §320.6 is denied. As the Court

held in the prior order dated December 11, 2006, the statute does not authorize the Court to refer

this case for post-petition adjustment in the absence of proof that Agent Jean-Baptiste and Officer

Rodriguez consent to the referral of this matter for adjustment services (Fam. Ct. Act §320.6 [2];

Matter of Aaron J., 80 NY23d 402 [1992]). Contrary to respondent's argument, the Family Court

may not compel the Department of Probation to adjust a case. Adjustment is a function delegated

solely to the Probation Department, an agency of the Executive Branch, and is governed by statute

and regulation (Fam. Ct. Act §308.1; 22 NYCRR §§205.22, 205.23; 9 NYCRR part 354; see, Matter

of Bernard C., 168 Misc 2d 813 [1996]). While adjustment generally occurs prior to the

commencement of a juvenile delinquency proceeding (Fam. Ct. Act §308.1 [2]), with one exception

not relevant to this case, the Court plays no role in the pre-petition adjustment process.^[FN3] Similarly, in [*5]

the situation where a post-petition referral for adjustment services is sought, the role of the Court is

limited to granting or denying the application (Fam. Ct. Act §320.6 [2]; Matter of Aaron J., at 402).

While the Family Court may refer a case to the Department of Probation for adjustment

services (id.; Matter of Deborah C., 261 AD2d 138 [1999]; Matter of Adam T., 287 AD2d 833, 834

[2001]), and the Court may also adjourn a proceeding in contemplation of dismissal conditioned

upon a respondent's cooperation with adjustment services (Matter of Jazmine E., 24 AD3d 760

[2005]; Matter of Jermaine K., 11 Misc 3d 1066[A], 2006 NY Slip Op 50396[U] [2006]), the statute

and regulations simply do not authorize the Court to compel the Department of Probation to adjust a

particular case. Likewise, there is no authority for the type of intrusive judicial supervision of the adjustment process which respondent seeks by demanding that the Court order the Department of

Probation to adjust a case in apparent contravention of their internal agency guidelines.^[FN4]

To the extent that respondent seeks to challenge the Probation Department's execution of its

statutory and regulatory adjustment duties or to compel the Department to perform a mandated duty,

those are matters which are beyond the scope of this Court's jurisdiction and they are more properly

raised in a different proceeding in a different forum (see, Matter of Leonora M. v. Krauskopf, [*6]104

AD2d 755, 756 [1984]; King v. State Education Department, 182 F.3d 162, 163 [2d Cir.1999]).

The branch of respondent's motion for an order adjourning the proceeding in contemplation

of dismissal is denied, without prejudice to renewal prior to the entry of any order of disposition in

this proceeding (Matter of Edwin L., 88 NY2d 593, 600 [1996]; Matter of Janay P., 11 AD3d 697,

697-698 [2004]; In re Melissa VV., 26 AD3d 682, 683 [2006]). Respondent's supplemental motion

presents no additional facts which were not considered by the Court when this application was

before the Court on the initial motion and the Court adheres to its prior decision.

As this Court previously stated, an adjournment in contemplation of dismissal "is an

adjournment of the proceeding, for a period not to exceed six months, with a view to ultimate

dismissal of the petition in furtherance of justice" (Fam. Ct. Act §315.3 [1]). Given the serious

allegations against the respondent, which include his involvement in a physical altercation with

another student on school grounds, his contempt and disrespect for school officials and law

enforcement officers, and his physical resistance to an apparently lawful arrest, and considering that

"[t]he overriding intent of the juvenile delinquency statute is to empower Family Court to intervene

and positively impact the lives of troubled young people while protecting the public" (Matter of

Robert J., 2 NY3d 339, 346 [2004]), the Court cannot conclude based upon the information

presently available that the best interests of the respondent and the safety of the public are served by [*7]

an ACD, which is an outcome which does not involve a finding of juvenile delinquency (e.g.,

Matter of Khaled S., 283 AD2d 197 [2001]). Respondent is not entitled to have the proceedings

adjourned in contemplation of dismissal simply because this is his first contact with the juvenile

justice system (In re Nikita P., 3 AD3d 499, 501 [2004]; In re Julissa R., 30 AD3d 526, 528 [2006];

In re Jayson R., 34 AD3d 685 [2006]).

This constitutes the order of the Court.

ENTER

_____________________________________

JOHN M. HUNT, J.F.C.

Dated: Jamaica, New York

January 19, 2007

Footnotes

Footnote 1:The initial petition filed against respondent with respect to the alleged incident charged him with commission of acts constituting the crimes of Resisting Arrest and Obstructing

Governmental Administration in the Second Degree.

Footnote 2:The decision has been edited for purposes of publication.

Footnote 3:The sole exception is that where a juvenile is alleged to have committed a designated

felony act (Fam. Ct. Act §301.2 [8]), the Probation Department must obtain written approval

from a Family Court Judge prior to implementing adjustment services (Fam. Ct. Act §308.1 [3]).

Footnote 4:According to respondent, the Probation Department will not adjust a case in which the

accused juvenile refuses to admit culpability. Notably, the pertinent state regulations authorize the local Director or Commissioner of the Probation Department or Probation Service to adopt

written criteria relating to the adjustment of cases for the local department which may include

"written criteria and procedures when necessitated by court order or local circumstances" (9 NYCRR §354.4 [b] [4]; see, 9 NYCRR §§354.4 [a] [2]; 354.3 [b]; 354.5 [j]).