New York Family Law Blog
A New York Family Lawyer said the respondent in a juvenile delinquency proceeding originated by removal to Family Court is not automatically entitled to inspect or to receive a copy of the minutes of any Grand Jury proceeding which must be transferred to Family Court when the case is removed.
In the first case, a presentation was made to the Grand Jury concerning the alleged participation of respondent and an adult, in robbery in December 1979. Pursuant to CPL 190.71 the Grand Jury requested that the matter pending against respondent be removed to Family Court and accused respondent of committing acts which, if committed by an adult, would constitute the crime of robbery in the second degree. A New York Custody Lawyer said the Supreme Court made and filed an implementing order of removal, and the matter was transferred to Family Court, Kings County.
Following arraignment, respondent by his Law Guardian moved orally to dismiss the petition for lack of jurisdiction on the ground that the forwarding court in making the transfer to Family Court had failed to forward a copy of the Grand Jury minutes, and further to inspect the Grand Jury minutes, a copy of which was then in the possession of the Corporation Counsel. Family Court denied both motions, and on application by respondent the Appellate Division granted permission to appeal, limited to so much of the Family Court order as denied the motion to inspect or obtain a copy of the minutes of the Grand Jury.
A Brooklyn Family Lawyer said on the appeal the Appellate Division reversed the order of Family Court and granted respondent’s motion to obtain a copy of the Grand Jury minutes and then granted leave to the City of New York to appeal to our court on a certified question.
In the second case, a felony complaint was filed in Criminal Court, Kings County, charging respondent with robbery in the first degree, alleging that in April 1979 respondent, acting in concert with four other persons, forcibly took money and property from the victim by threatening him with a handgun. A Brooklyn Child Custody Lawyer said an indictment was filed charging respondent with two counts of robbery in the first degree. Respondent’s case was thereafter removed to Family Court with the consent of the District Attorney, pursuant to CPL 210.43.
On respondent’s first appearance in Family Court his Law Guardian moved to have a copy of the Grand Jury minutes served on him and in the alternative to dismiss the petition as jurisdictionally defective for failure to include a copy of the Grand Jury minutes. Family Court denied both motions. In this case, too, on respondent’s application, the Appellate Division granted permission to appeal but again only with respect to the denial of respondent’s motion to cause copies of the Grand Jury minutes to be served on him. On the appeal the Appellate Division reversed the order of Family Court and granted respondent’s motion for copies of the Grand Jury minutes and similarly then granted leave to the District Attorney of Kings County to appeal to our court on a certified question.
The Court ruled that “The order of removal must direct that all of the pleadings and proceedings in the action, or a certified copy of same be transferred to the designated family court and be delivered to and filed with the clerk of that court. For the purposes of this subdivision the term ‘pleadings and proceedings’ includes the minutes of any hearing inquiry or trial held in the action, the minutes of any grand jury proceeding and the minutes of any plea accepted and entered.”
” When an order of removal pursuant to article seven hundred twenty-five of the criminal procedure law is filed with the clerk of the court such order and the pleadings and proceedings transferred with it shall be and shall be deemed to be a petition filed pursuant to subdivision one of this section containing all of the allegations therein required notwithstanding that such allegations may not be set forth in the manner therein prescribed. Where the order or the grand jury request annexed to the order specifies an act that is a designated felony act, the clerk shall annex to the order a sufficient statement and marking to make it a ‘designated felony act petition’.”
The Court agreed with the Appellate Division that the Legislature has unmistakably prescribed that, for the purposes of CPL 725.05 which specifies what must be transferred under an order of removal, the “pleadings and proceedings” there mandated to be transferred to the Family Court shall include “the minutes of any grand jury proceeding”, and that under subdivision 3 of section 731 of the Family Court Act, dealing with the origination of juvenile delinquency proceedings, the “pleadings and proceedings” transferred to the Family Court pursuant to the order of removal “shall be and shall be deemed to be a petition”. At this point, however, we depart from the analysis and reasoning of the Appellate Division.
As to proceedings initiated by removal, however, subdivision 3 makes provision for what is to be deemed to be the procedural equivalent of a petition, consisting, pursuant to the cited statutory provisions, of the order of removal and, in some instances, of other documents as well. In any event, absent a statutory command that a copy of the entire petition shall be served on or otherwise be made available to a respondent, the latter’s right thereto would appear to depend on constitutional due process rights to notice. Measured by this standard, which we hold to be applicable, respondents in juvenile delinquency proceedings are not necessarily entitled to copies of the Grand Jury minutes; due process entitlement to notice, except possibly in a most unusual case, can be fully met by service of a copy of the order of removal and of other documents in the petition file, if need be, without recourse to Grand Jury minutes.
Respondents here, relying only on the statutory provisions cited, do not contend in either of the cases now before us that the papers furnished to them failed to provide the notice to which they were constitutionally entitled and that they were accordingly entitled to copies of the Grand Jury minutes as a matter of constitutional right; indeed there is nothing in the record in either case on which such a contention could be premised.
The evident purpose of requiring the transfer of any Grand Jury minutes along with the rest of the file on removal of a case to the Family Court, in addition to the obvious advantages of maintaining a single integrated file, was to place such minutes within the jurisdiction of the Family Court, thereby making them available to facilitate compliance with any pertinent statutory mandate, in the event of a motion to inspect the Grand Jury minutes, or should the Family Court Judge in an individual case determine for other reasons that there should be a disclosure of the minutes.
For the reasons stated, in each case the order of the Appellate Division should be reversed, without costs, the order of Family Court denying respondent’s motion reinstated, and the certified question answered in the negative.
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