New York Family Law Blog
This decision follows the release of the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c), after the court held a pre-petition hearing and determined that the court had jurisdiction to detain the respondents pending a petition being filed.
A New York Family Lawyer said that, on Sunday, August 7, 2011 at about 7 p.m. uniformed police officers took both thirteen-year-old respondents into custody in connection with an alleged robbery occurring on the same date. Apparently, respondent D was identified in a show-up and arrested by the uniformed officers before being transported to the 94th Precinct. The basis for the detention of respondent is less clear, although he also may have been under arrest. Both respondents were detained at the 94th Precinct for over twenty-four hours until the evening of August 8, when they were taken to the Horizons detention center, from which the respondents were brought to the Kings County Family Court on the morning of Tuesday, August 9, 2011. Altogether the respondents were in custody for about thirty-eight hours before being produced in court. These facts came to light in a pre-petition hearing held under Family Court Act § 307.4 on the morning of August 9.
A New York Custody Lawyer said that, while in detention at the 94th Precinct on Sunday night, the respondents were placed in lineups arranged by detectives in connection with an investigation into events occurring on Saturday August 6, unrelated to the event that lead to their detention by the uniformed officers on August 7. Specifically, the detective testified that the respondents were detained at about 7 p.m. on August 7 by the uniformed police officers in regard to an alleged robbery. The uniformed officers brought the respondents to the 94th Precinct. The detective understood that defendant was under arrest, although he was not certain about the other defendant. The uniformed officers notified the respondents’ parents, who appeared at the precinct sometime around 8 p.m. on August 7. The detective suspected that the respondents may have been involved in two additional crimes on August 6. Apparently the detective questioned both respondents in the presence of their parent in relation to the August 6 crimes, and defendant made a statement at about 8:35 p.m. on August 7. The detective arranged for both respondents to be placed in line-ups at about 12:45 a.m. on August 8 with regard to one of the August 6 crimes. The result of those line-ups is unclear. The detective decided to conduct a second line-up with regard to the second August 6 crime, later in the day on August 8.
The detective testified that he contacted someone whose name he did not record, at the Kings County Family Court at 8:30 a.m. on Monday, August 8, to say that he had a juvenile ready for court, referring to the other defendant. The detective informed the speaker that the juvenile acted in concert with a second juvenile who was being detained for a line up. According to the detective, the speaker told him to wait until both juveniles were ready to be charged, but not to bring either of them unless both could be brought to court by 2 p.m. The detective testified that he was waiting for witnesses so as to conduct a line-up with the defendant. That line-up occurred at 1:45 p.m. The detective arrested the defendant. at 2 p.m. on August 8 for the offense that ultimately became the subject of the pre-petition hearing held on August 9. Following the instruction he received on the telephone, the detective did not produce the respondents to court, but kept them at the precinct. Sometime on the night of August 8, the police took the respondents to a detention facility from which they were produced in court in the morning of August 9.
A Westchester County Family Lawyer said the issue in this case is whether the court erred in releasing the two juvenile respondents from custody, despite a motion for their continued detention pursuant to Family Court Act § 307.4(4)(c).
The court in deciding the case said that, Family Court Act § 305.2 governs the duties of the police upon the arrest of a “child,” which is to say a juvenile under the age of sixteen. That section states that an officer who takes a child into custody must immediately notify the child’s parent or guardian of the detention. The officer must either release the child to the custody of the parent or must “forthwith and with all reasonable speed take the child directly, and without his first being taken to the police station house, to the family court located in the county in which the act occasioning the taking into custody allegedly was committed.” If the family court is not then in session, the police are to take the child to a place certified by the Office of Children and Family Services as a juvenile detention facility for the reception of children. Pursuant to Family Court Act § 307.3, the agency responsible for operating a detention facility may in turn, “when practicable” release the child to the parent or guardian before a petition is filed and issue an appearance ticket. If the child is not released by the detention agency, then the statute requires that the child “be brought before the appropriate family court within seventy-two hours or the next day the court is in session, whichever is sooner.” The agency shall thereupon file an application for an order pursuant to family Court Act § 307.4.
Significantly, a Westchester County Custody Lawyer said these statutes ensure a child prompt access to counsel and to an independent judicial decision whether continued detention is in the best interest of the child and necessary to prevent further acts of delinquency. These statutes extend to children the right to appear before a judge directly to seek release from detention even before an accusatory instrument has been filed. This statutory right precedes and is distinct from the probable cause determination that follows an initial appearance on a juvenile delinquency petition.
Under these statutes a juvenile arrested by the police should be produced in the family court on the day of the arrest or not later than the next day. The statute presumes that if the child is not produced to court by the police on the day of the arrest, then the police will produce the child to a juvenile detention center operated by the Office of Children and Family Services for the reception of children. In brief, the statutes do not contemplate that a child will be held overnight in custody in a police precinct.
There is a limited exception to the obligation either to release children to their parents or to produce them directly to the family court or to a juvenile detention center. Family Court Act § 305.2(4)(b) permits the arresting officer who “determines that it is necessary to question the child,” to “take the child to a facility designated by the chief administrator of the courts as a suitable place for the questioning of children or, upon the consent of a parent or other person legally responsible for the care of the child, to the child’s residence and there question him for a reasonable period of time.” Where the officer elects to take the child to a designated juvenile room in a police precinct for questioning, the detention must be limited to “a reasonable period of time.” Of course, the child’s parent or legal guardian must be notified and must be given the opportunity to be present during the questioning. These statutes apply even though the child is arrested for a designated felony.
This exception is predicated upon a determination that such questioning is “necessary.” As previously noted, any questioning must be limited to a “reasonable period.” The terms “necessary” and “reasonable” are terms of limitation. The court does not assume that the legislature used these terms as a “hortatory flourish.” By using the word “necessary” the legislature clearly intended that there be a investigative need to question the juvenile, not that the officer merely finds it useful to do so.
Courts recognize that juveniles are not miniature adults, and are not to be treated as such during police investigations. The legislature expresses the same principle, by using the word “child” in these statutes. It follows that police procedures appropriate to adults may be inappropriate to children. Although courts may allow extended detention of adults where necessary to complete an investigation into suspected crimes, these statutes clearly specify a different standard where the suspect is a child. To summarize the statutory requirements: once a child is arrested the statutes direct the police either to release the child to a parent or to take the child to court or to a juvenile detention center operated to receive children. The statutes only permit a child to first be taken to the police station for questioning where “necessary.”
Here the respondents were arrested by uniformed officers at about 7 p.m. on August 7 for a crime which allegedly occurred at about the time of their arrest. Because it was a Sunday night they could not have been taken directly to the family court. In any event, they were taken to the precinct, their parents were notified and they were questioned by detective in the presence of their parents within an hour. Instead of being taken to a juvenile detention facility after questioning, they were detained at the precinct to stand in a line-up at 12:45 a.m. on August 8. Even then they were not taken to a detention center, but continued to remain in the precinct until the detective called the Family Court at 8:30 on Monday morning. At that point 12 hours had elapsed since the respondents were questioned in the presence of their parents. Although the detective informed the person who answered his call that one juvenile was ready to be processed, he was advised to wait until he was ready to bring both to court. Thereafter, the detective decided to continue to detain both of the thirteen-year-olds in the precinct awaiting a second line-up unrelated to the respondents’ initial arrest. At this point in the court’s view, any statutory justification to continue to hold the respondents was exhausted. Nonetheless both respondents continued in police custody for another twelve hours or more until they finally were brought to a juvenile detention center on the night of August 8. They were not produced before a judge until the next morning, approximately 39 hours after their arrest. The court finds that this prolonged detention unrelated to their initial arrest or to any need to question them in regard to that arrest violated the plain language of the statutes.
The remaining issue to be resolved is whether the remedy for this violation is the release of the respondents. In Roundtree the Supreme Court established a presumption that persons arrested and held for twenty-four hours were entitled to arraignment or release. Similarly, this court has held that presumptively juveniles are to be produced in court immediately following their arrest, or at least as soon as any necessary questioning related to that arrest is concluded. As any statutory justification to detain these respondents was exhausted as of Monday morning August 8, they should have been produced before the court at that time. Insofar as they continued in detention for another 24 hours, they are entitled to release.
If your child committed a crime, seek the assistance of a Kings Order of Protection Attorney and Kings Child Custody Attorney in order to know which court has jurisdiction over your child. Call us at Stephen Bilkis and Associates.