New York Family Law Blog
This original application for a writ of prohibition arises out of the new law (L.1978, c. 481), imposing criminal responsibility on juvenile offenders for certain crimes. Sodomy in the first degree is one such crime (PL § 30.00(2)). A Bronx Family Lawyer said that, petitioner, a 15 year old juvenile offender (PL § 10.00(18)), stands indicted on four counts of sodomy in the first degree. He was arrested on October 4, 1978, and was arraigned in the Bronx Criminal Court the following day. By reason of the intervening weekend and the Jewish holy days which followed thereafter, the case was adjourned to October 11, 1978. A Bronx Family Lawyer said that, on that day, petitioner made request for a preliminary hearing and for a hearing seeking removal of the charges to the Family Court. In response to the application, the prosecutor informed the court that a true bill had been voted by the Grand Jury on October 10, 1978, although, as a result of time pressures, the indictment had not yet been handed down. The judge presiding denied the application on the ground that he had been divested of jurisdiction by the action of the Grand Jury. He adjourned the proceeding until October 13, 1978 in order to afford the District Attorney’s office time to file the indictment. In fact, the indictment was filed the next day, and on October 13, 1978, the case was transferred to the Supreme Court.
A New York Family Lawyer said that, petitioner moved before the Justice for multiple relief, including a dismissal of the indictment under CPL § 210.20(h) upon the ground that “there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged”. The specific basis urged was that petitioner had been deprived of the right to a removal hearing. A Bronx Family Lawyer said that, the Justice denied the application upon the ground that the “Grand Jury acted within its own authority which cannot be diminished by any previous court hearing or lack of such hearing”. A motion for leave to reargue was denied. Thereupon, this proceeding was brought.
The issue in this case is whether the indictment of petitioner should be dismissed on the ground that there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.
A New York Custody Lawyer said the court in deciding the case said that, Criminal Procedure Law § 180.75 govern proceedings against a juvenile offender upon the filing of a felony complaint. Subdivisions 3(a), (b) and (c) provide for a hearing and the nature of the dispositions to be made at the conclusion thereof. Subdivision 4(a) which is the heart of this application provides in pertinent part: “Notwithstanding the provisions of subdivisions two and three of this section, (a) the court, on motion of any party or on its own motion may, and shall, at the request of the district attorney, order removal of an action, except one involving a complaint charging a juvenile offender with murder in the second degree, or an armed felony as defined in subdivision 41 of section 1.20 of this chapter, to the family court if it is determined that to do so would be in the interests of justice”.
A Bronx Family Lawyer said that although the law makes provision for the transfer to the Family Court of criminal charges against a juvenile offender at various stages in the proceedings against him, the only stage at which such transfer may occur without the consent of the District Attorney is at this removal hearing in the Criminal Court. The hearing is, therefore, a most valuable statutory right. By presenting the case to the Grand Jury before petitioner could have that hearing, the District Attorney deprived petitioner of the power to exercise this right.
We are not unaware that the Supreme Court has general jurisdiction in law and in equity, and the legislature is powerless to abridge or limit that jurisdiction. Were the issue merely one of a preliminary hearing, there is little doubt of the power of the Grand Jury to “investigate and indict regardless of what had occurred” in the Criminal Court and regardless of whether that Court “had held or discharged the prisoner or still had the matter pending or whether there had ever been such a preliminary hearing”. Here, however, the situation is somewhat different. The same statute which gave rise to the power of the Grand Jury to indict this petitioner for the crimes charged imposed, as a condition to the exercise of that power, the requirement that, unless waived, a Removal hearing be held. Thus, the legislature made the removal hearing a jurisdictional prerequisite to the Grand Jury’s right to indict a juvenile offender.
A Bronx Custody Lawyer said sound reasons of policy suggest themselves for the different treatment accorded a removal hearing from that given to a preliminary hearing. The purpose of a preliminary hearing is, basically, to determine whether probable cause exists for the conclusion that defendant committed the crime charged. That right is not lost even though the District Attorney proceeds by direct presentation to the Grand Jury or by presentation intervening between the arrest and the date fixed for the preliminary hearing. In such circumstances, the issue of probable cause may be tested and resolved by a motion to dismiss the indictment. Hence, no prejudice results to a defendant from action which eliminates a preliminary hearing.
However, where a juvenile offender is involved, the removal hearing in the Criminal Court presents the only opportunity for a judicial determination on the issue of removal to the Family Court Without the consent of the District Attorney. To permit the District Attorney to proceed by direct or intervening indictment and thus take from the juvenile offender the only opportunity for a purely judicial holding that he shall be tried as a juvenile delinquent rather than as a juvenile offender is to permit the District Attorney to frustrate the legislative intent. The summary disposition of petitioner’s application without affording him an opportunity to be heard on the merits of his claim to removal was not a hearing. Indeed, the Court was emphatic that he was without power to hold a hearing once an indictment had been voted.
Inasmuch as the hearing required by CPL § 180.75(4) has not yet been held, it is plain that the prerequisite to action by the Grand Jury was missing. It follows that the indictment handed down was defective, and, by consequence, failed to confer jurisdiction on the Supreme Court. Accordingly, the application should be granted, the indictment should be dismissed, and the proceeding should be remanded to the Criminal Court, Bronx County, for the purpose of conducting the hearing prescribed by CPL § 180.75(4), without costs or disbursements.
Thus, the court held that the application granted, without costs and without disbursements, the indictment dismissed, and the proceeding remanded to the Criminal Court, Bronx County, for the purpose of conducting the hearing prescribed by CPL § 180.75(4). The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of a copy of this Court’s order upon the respondents, with leave during this 30-day period to respondents to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
If a juvenile offender is involved, the removal hearing in the Criminal Court presents the only opportunity for a judicial determination on the issue of removal to the Family Court Without the consent of the District Attorney. If your child is in a similar situation in the case at bar, seek the legal opinion of a Bronx Family Attorney and/or Bronx Order of Protection Attorney at Stephen Bilkis and Associates. Call us for free legal advice.