New York Family Law Blog
A New York Family Lawyer said an agency filed an appeal charging a man committed an act which if committed by an adult would constitute the crime of promoting contraband in the second degree. A fact-finding hearing was commenced. A community associate, a director, and a probation officer testified.
A New York Custody the offender made his initial appearance concerning the issue filed against him in the family court. He was released on that date with the condition that he attends the county’s alternatives to detention.
The director of the county’s alternatives to detention testified that participants are required to attend the program Monday through Friday, from 8:00 a.m. to 4:00 p.m. The program is consists of offices for the probation staff, a cafeteria, a recreational area, and classrooms for the attendees.
A Nassau County Family Lawyer said the also told the court that the attendees are not locked inside the building, but that they are supposed to remain inside the facility during its hours of operation. Attendees who leave the premises during operating hours are considered absent without leave, and alternatives to detention would request of the court their parole to detention be terminated forthwith.
She further stated that she went on to say that before entering the premises of the county’s alternatives to detention, each attendee is searched. A security officer has the attendees empty their pockets and then conducts a pat down of each attendee.
A community associate also testified that at 8:30 a.m. he was conducting searches at the entrance of the facility. He told the court that he recovered a plastic bag from the offender’s pocket, which he believed contained marijuana.
On cross-examination, the community associate was asked several questions about the nature of the facility.
A probation officer testified that he was stationed at the entrance of the county’s alternatives to detention and saw the community associate remove a plastic bag from the offender’s pocket. The community associate then gave the bag to him. The bag and its contents were submitted into evidence, along with a laboratory report showing the contents of the bag to be marijuana.
Based on records, in determining a motion to dismiss for failure to establish a case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn there from. Moreover, the question of credibility is irrelevant, and should not be considered.
In addition, the law avers in pertinent part that a person is guilty of promoting prison contraband in the second degree when he knowingly and unlawfully introduces any contraband into a detention facility.
In oral argument, the offender maintained that the applicable statute for defining detention facility is the family court act, which states that the detention means the temporary care and maintenance of children away from their own homes. Detention of a person alleged to be or adjudicated as a juvenile delinquent shall be authorized only in a facility certified by the division for youth as a detention facility.
The offender also argues that an alternative to detention is not a detention facility in accordance with the definition, because it only operates during limited weekday hours and does not lock its attendees inside. He further notes that the agency failed to introduce evidence showing that the county’s alternatives to detention is certified as a detention facility by the division for youth.
The agency however opposes the dismissal motion. They argue that the applicable definition of detention facility is found in the law. According to the agency, alternatives to detention is a detention facility because its attendees are prohibited from leaving the building during the program’s hours of operation.
Sources revealed that the issue of whether the alternatives to detention is a detention facility is apparently one of first impression. For the reasons which follow the court found that the agency has failed to establish a case.
In analyzing the issue, the law defines detention facility as controlling, since the offender is charged with violating a provision of that ruling. In addition, the legislature made clear its intention to have the law that it applies to juvenile delinquency cases, by specifying that detention facilities could be used for a person charged with being a juvenile delinquent.
Furthermore, there is no alternative to the law definition of detention facility, as that term is nowhere defined in the family court act.
Based on records, the distinction between detention facilities and less restrictive settings was discussed in previous related case. The offender in the said case was found to have a mental defect after a rape conviction, and was placed in a secure facility by the commissioner of mental health. The offender was later moved to the psychiatric center, a non-secure facility. After absconding from the psychiatric center he was charged with escape in the second and third degrees. A dismissal of the petition by the trial court was upheld by the first department. The court of appeals affirmed, and the judges found that the psychiatric center was not a detention facility. They reasoned that the purpose of his custody in the commissioner of mental health was no longer security, confinement and prevention of escapes, but therapy and rehabilitation.
Further, the county’s alternatives to detention is less restrictive than the facility examined in the previous related case. The trial court’s decision in the said case noted that the offender was prohibited from leaving the county’s psychiatric center unless he obtained permission to do so. However, the offender in the case was permitted to leave the county’s alternatives to detention every weekday at 4:00 p.m. and did not attend the program on the weekends.
Consequently, the purpose of the county’s alternatives to detention was something other than security, confinement and prevention of escapes. Rather than confinement, the purpose of the alternatives to detention, as was expressed by community associate is supervision.
Sources revealed that each court date the program reports on the offender’s behavior while in the program and immediately informs the court if the offender goes absent without leave. The alternatives to detention’s nonrestrictive character becomes clear when looking at the options and the court will determine the offender’s status at the initial appearance.
Moreover, the family court act state in pertinent part that the initial appearance, the court in its discretion may release the offender or direct his detention. The court may in its discretion release the offender upon such terms and conditions as it deems appropriate. Detention may only be ordered after a finding that there is a substantial probability that the offender will not appear in court on the return date, or there is a serious risk that he may before the return date commit an act which if committed by an adult would constitute a crime. When the offender is released to the alternatives to detention there is, thus, necessarily a finding that the offender is likely to return to court and is unlikely to engage in illegal behavior.
The characterization of the alternatives to detentions as a nonrestrictive facility also comports with the court judge’s finding that the offender is not a risk to flee or engage in illegal behavior.
For that reason, after viewing the evidence in the light most favorable to the agency the offender’s motion to dismiss the petition is granted.
Whenever you are involved in a several courts proceeding, you can seek legal assistance or representation from the Kings County Family Attorney. You can also have the expertise of the Kings County Child Support Attorney or Kings County Child Custody Attorney to defend your child’s guardianship. At Stephen Bilkis and Associates office, you can seek legal experts you opt to have.