53 Misc. 2d 51 | N.Y.C. Fam. Ct. | 1967
These cases present two problems: first, what constitutes proper questioning of juveniles by the police, and the question of whether Miranda v. Arizona (384 U. S. 436) is applicable to children who are respondents in this court. It is of the utmost importance to Juvenile Court Judges to know the present attitude of appellate courts on these problems. Accordingly, it is the court’s hope that an appeal will be taken so that these issues can be decided with finality for future guidance.
The respondents, Clarence Billings, age 9, Andrew Rust, age 10, and Robin Alexander, age 12, are alleged to have unlawfully entered Public School No. 191 in Brooklyn, New York, on October 15,1966 by way of a window and damaged equipment and furniture and stolen various supplies. The petition alleged that the acts, if done by an adult, would constitute the crime of malicious mischief.
The respondent, Ronnie Thomas, age 13, is alleged to have committed the same acts on October 22,1966 at the same school.
These respondents were apprehended as a result of an investigation by Detective Meyer, who received their names from a third person during the course of his investigation. No eyewit
The Law Q-uardian moved to suppress Meyer’s testimony upon the ground that he had not advised the respondents of their rights, which Meyer admitted. Without any witnesses there can be no finding in any of the cases unless these admissions are admissible. In all the petitions the respondents rested at the close of the petitioner’s case after moving to suppress and for a dismissal. The court reserved decision upon all motions.
children’s court philosophy
In Kent v. United States (383 U. S. 541 [March, 1966]), the Supreme Court stated that the theory of the children’s court is that it is rooted in social welfare rather than in corpus juris, that its proceedings have always been designated as civil rather than criminal, that it has been conducted on a parens patriae basis, that the purpose of the court was to supply guidance and rehabilitation to the juvenile and protection to society and not to fix criminal responsibility, guilt and punishment. Since, the court continued, the case is supposed to proceed on this philosophy, the juvenile cannot complain that he is not receiving the impor
On September 1,1962, a new Family Court Act went into effect in New York to replace the Children’s Court Act. The Legislative Report on the Family Court Act (McKinney’s Sess. Laws, 1962, p. 3430) stated the legislative intent. “ The Committee concluded that it would be unwise, at this time, to give the Family Court the extensive powers given the criminal courts under the Penal Law of the State of New York. This would introduce the technical requirements of the Code of Criminal Procedure. In the Committee’s view, while a due process of law should be used in the Family Court, criminal powers and procedures would be inconsistent with the proper development of the Family Court during its formulative period, as a special agency for the care and protection of the young and the preservation of the family ”. The report continued (pp. 3436-3437): 11 The New York Court of Appeals has indicated in People v. Lewis, 260 N. Y. 171, 183 N. E. 353,86 A. L. R. 1001 (1932), that not all of the constitutional requirements of a ‘ criminal trial ’ necessarily apply to a ‘ civil proceeding ’ involving juvenile delinquency. The practical result is that the Legislature has wide discretion in prescribing the processes of law in this area ”. The Legislature also provided that the Code of Criminal Procedure does not apply to the Family Court (Code Grim. Pro., § 11) and provided that the CPLR be used to supplement the procedure where the provisions of the Family Court Act did not cover the situation (these are the rules of practice in the civil courts) (Family Ct. Act, § 165). This has been ineffective, for the CPLR does not cover the same material as the Code of Criminal Procedure. Since the adoption of the Family Court Act, the practice and procedure in this court has been changed radically to provide “ a due process of law ” for juvenile cases (Family Ct. Act, § 711), which provided provisions respecting detention before and during the proceedings
What is the function of an attorney in this court, considering the theory of the court? Is he to represent the juvenile as an attorney would in a criminal case or is he to assist the court in producing the facts on a fact-finding hearing or to conceal the facts by raising technical objections? Is he to resort to technicalities to dismiss the petition, knowing that the juvenile committed the act? On the dispositional hearing, is he to insist that each juvenile be returned to the community, knowing that he had been involved in prior acts of juvenile delinquency or that the family cannot control him or that he obviously is a menace to others? (See Isaacs, “The Role of the Lawyer in Representing Minors in the New Family Court ” — 12 Buffalo L. Rev. 501, 506 [1963]). Presently, most attorneys must be considered as seeking a favorable result — complete freedom for his client. If this attitude continues, the theory of this court will be destroyed and it will become another criminal court for children. In my opinion, the presence of attorneys is desirable but their role should be more clearly defined. The presence of attorneys has resulted in making many contested hearings into truly adversary proceedings. On the plus side, the respondent’s case is being better prepared and presented. However, the present situation has progressed to the point that the statute should require representation for petitioners and, in cases where the police are involved, the Department of Welfare, the Board of Education, the Transit Authority and various voluntary organizations, they have deemed it necessary to have their own attorneys present to present the petitioner’s interests. Some individual petitioners also appear by attorney. When petitioners are not represented by an attorney, the Judge must conduct the petitioner’s case as best he can since he had no advance knowledge of the facts and
“We believe that the rationale underlying that opinion has been rejected by the Legislature and that the specific holding of the case has been overruled by statute.
“ While the Family Court Act specifically states that the proceedings held thereunder are not criminal in nature, the various provisions made for the protection of the rights of children who are charged with juvenile delinquency are indicative of a legislative recognition of the fact that such proceedings, resulting as they do in a loss of personal freedom, are at the very least quasi-criminal in nature ”. (Italics mine.)
Therefore, this court is now a court of quasi-criminal nature as to juvenile delinquency proceedings, but the issue now is how far this court should go in applying the principles of constitutional and criminal law to juveniles.
In the Matter of Henry B. (27 A D 2d 529) there is some indication that all the essential proof required in a criminal case to prove rape was not necessary to prove juvenile delinquency. This decision would indicate that it is not necessary to prove all the essentials of a crime in delinquency proceedings.
The questioning of juveniles of the ages of these respondents in the absence of a parent, a friend, a relative or an attorney does not seem proper considering their ages, the circumstances and place of the questioning except as to Rust, under Gallegos v. Colorado (370 U. S. 49) and Haley v. Ohio (332 U. S. 596). No statute in New York requires the presence of an adult at the interrogation. Section 724 of the Family Court Act provides in substance when a juvenile person is taken into custody the officer “ shall immediately notify the parent or other person legally responsible for his care, or the person with whom he is domiciled, that he has been taken in custody ”, that after making a reasonable effort to give the required notice that he shall forthwith (and with all reasonable speed) take the child and without his first being taken to the police station house, to the Family Court located in the county in which the alleged act was committed, unless he determines that it is necessary to question the
In the “ New Confession Standards ” by Honorable Nathan R. Sobel, Justice of the Supreme Court, State of New York, the Justice states that the opinions in the several jurisdictions justify a prediction that under Miranda standards, no ‘ ‘ waiver ’ ’ from a juvenile could conceivably be found unless counsel or a parent was in fact present during the interrogation, (p. 11).
The manner in which these respondents were questioned was far different than in Gallegos — but the statements quoted above seem to be equally applicable to the questioning of these respondents in the absence of a parent, friend or attorney.
Other recent cases indicate that courts are greatly concerned with the manner in which juveniles are questioned. In State v. Carlo (48 N. J. 224) the court states that the police should see that a parent or friend is present at the questioning if feasible. In United States v. Glover (372 F. 2d 43 [C. A. 2d]) a finding was set aside because the juvenile was not treated as the United States Code required. In State v. hopes (96 Ariz. 169), a confession was held inadmissible because it was taken by the police before any attempt was made to notify the juvenile parole officer.
The problem of the proper procedure in questioning juveniles, whether in custody or not, is one of the utmost importance in view of the different attitudes of the courts, and it is earnestly recommended that the police and the courts in New York State confer and devise a method which will comply with present day requirements.
Does Miranda apply to juveniles? In my opinion it does, for how can we deprive juveniles of the rights of due process afforded adults?
Miranda v. Arizona (384 U. S. 436, 467) states: “ Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate themselves ”. This quotation indicates that the Fifth Amendment applies in criminal as well as civil proceedings and to children as well as adults. Miranda requires that if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent; the warning must be accompanied by the explanation that anything said can and will be used against the individual in court; that he must be clearly informed that he has the right to have counsel present at the interrogation, so he can choose between
No warnings of any kind were given to these respondents. Even assuming that such warnings were given, it is doubtful that young boys, ages 9,10,12 and 13 would have understood the full import of such warnings and could waive their rights. How can we say that children of these ages can understand these warnings when there is doubt that adults would understand them? How ridiculous it would be to go through the formula of Miranda with children the ages of these respondents.
In Matter of Gregory W. (26 A D 2d 695 [revd. 19 N Y 2d 55]) Judge Hopkins said in his dissent (pp. 696-697): “I recognize that the standards of proof, and the nature of a delinquency proceeding in the Family Court, differ from a criminal prosecution (People v. Lewis, 260 N. Y. 171; Family Ct. Act, §§ 731-749), but I do not consider that the standards of due process are different because of the difference in procedure. Both a criminal prosecution and a juvenile delinquency proceeding may result in detention, if the charge is determined to have been established. I would apply the same constitutional requirements of due process without regard to the nature of the proceeding, the standards of proof, or the punishment to follow, where the liberty of an individual is in the balance (cf. Matter of Alaimo, 16 A D 2d 814). A juvenile charged in the Family Court with the commission of acts amounting to a crime if committed by an adult should surely enjoy the same constitutional safeguards as would the adult charged in a criminal prosecution ”.
Matter of Gregory W. (19 N Y 2d 55) was tried in December, 1964, while Miranda was decided on June 13,1966 and under the holding of People v. McQueen (18 N Y 2d 337) the Miranda doctrine is not retroactive to any findings or convictions prior to June 13,1966. Therefore, the Court of Appeals did not discuss the applicability of Miranda in the Gregory W. case.
The court is not unmindful of the statement in State v. Carlo (supra) that children should not be taught to hide behind constitutional safeguards but I feel that Miranda points the other way. Accordingly, I find that the admissions of these respondents must be suppressed.
This court realizes that it is stirring up a hornet’s nest with a multitude of problems for the police and the public. The court is not in sympathy with this doctrine and it accepts the reasoning in State v. Carlo (supra) as more beneficial to children, but it must follow Miranda. It believes that the doctrine will hurt, not help, children as well as expose the public to greater perils and risks. Moreover, it would seem to be contrary to the very purpose of this court which is to rehabilitate children and teach them to respect the rights of others and the truth and not to hide their wrongdoings under constitutional and technical safeguards, which in effect is teaching children a “ slick way” to escape their responsibility. The daily papers carried a report that the Board of Education of New York City sustained over one million dollars worth of damage due to broken glass in windows in 1966, and an additional one half million in property stolen by acts similar to those of these respondents. The fact is well known that property in this city today must be protected if it is to remain intact. This is a sad commentary upon our people but true. Perhaps the condition could be corrected if people taught their children to admit their acts when they are wrong. There seems to be more concern and sympathy for the wrongdoer than for the injured. During the past month this Judge had heard cases of a serious stabbing of a pedestrian with an 8-inch dagger for no reason, which put the victim at death’s door for some days; a police officer guarding a fire alarm box, who was struck on the head with a bottle by one of a group of juveniles and confined to the'hospital for weeks; a lady’s pocketbook snatched — when she tried to protect herself she was thrown to the ground, fracturing her shoulder and requiring hospitalization; elderly men and women walking in daylight on busy city streets set upon by groups of young juveniles, and one who was grabbed around the neck from behind was thrown to the pavement and knocked unconscious, and as one witness described it: “ they went through his pockets like vultures ” ; a police officer dressed as a woman attacked by a group of juveniles at night while walking down a city street, and passengers on city subways subjected to beatings^ and insults. Many respondents in similar cases will go free under Miranda. Presently the Borough President of Brooklyn and aroused citizen groups are seeking more protection so people can walk the streets in safety.
Although the courts must be concerned with the rights of the wrongdoers and see that they are protected to the full extent of
However I may feel, I must and shall apply the law as the Supreme Court has made it; and so the motion to suppress the officer’s testimony is granted and since there is no other evidence, the petitions must he dismissed.