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Court Rules on Hearsay Allegations

 

The court said that for an order dismissing paragraph 3B of the violation petition as jurisdictionally defective pursuant to Family Court Act §311.2, in that it allegedly is not “sufficiently supported by non-hearsay allegations,” and further that it is not a condition of the Respondent’s current order of probation; and for a dismissal of the entire violation petition “for reasons of res judicata;” and also pursuant to Family Court Act §315.2 for such other and further relief as the Court may deem appropriate.

Respondent was initially arrested on or about May 26, 2004, upon a petition that alleged acts which, if the Respondent were an adult, would be coercion in the first degree in violation of §135.65 of the Penal law, a class D felony and coercion in the second degree in violation of §135.60 of the Penal Law, a class A misdemeanor. A fact-finding hearing commenced on May 30, 2004 and concluded on July 21, 2004 with respect to that petition; the acts constituting coercion in the first degree were dismissed and the Court made an affirmative finding with respect to the acts of coercion in the second degree. Thereafter at a dispositional conference, Respondent was placed on probation on consent for a period of 24 months, from September 2, 2004. In addition to the usual conditions of probation supervision, special conditions consisted of the following: “no contact with the victim; no gang affiliations or associations, except for Respondent’s brother; and Respondent to continue in counseling as directed.”

On January 3, 2005, petition A was filed, alleging certain violations of the order of probation. An admission was taken as to Respondent’s continuance of illegal drug use, which resulted in a disposition of a new probationary period of two years commencing January 28, 2005. In addition to the usual conditions of probation supervision, the only special condition was: “cooperate with Brentwood Outreach House residential substance abuse treatment as directed by Probation.”

On February 24, 2005, petition B was filed alleging a violation of the order of probation of January 28, 2005, in that Respondent left her placement at Brentwood Outreach House and had not returned to the program. That petition was settled, without admission, on February 24, 2005, whereby, on consent, Respondent was continued on her probation pursuant to order dated January 28, 2005.

On January 26, 2006, a third violation petition was filed alleging that Respondent was in violation of various provisions of the order of probation dated September 2, 2004. A fact-finding hearing was held with respect to petition C on February 21 and February 22, 2006, resulting in this Court’s dismissing the entire petition after Petitioner’s case; and the prior order of probation dated January 28, 2005 was continued.

Violation petition D was then filed on August 7, 2006, alleging that Respondent violated her order of probation dated January 28, 2005, in that she left the residence and did not return, that her mother (with whom she resided) filed a missing persons report, and that Respondent’s whereabouts remained unknown. The Court also issued a warrant of arrest for the Respondent. The warrant was executed on August 23, 2006, and a denial was entered, Respondent was remanded to the Juvenile Detention Center, and the matter was set down for a conference on August 25, 2006, at which time the Presentment Agency withdrew the petition.

Thereafter, and on August 25, 2006, a fifth violation petition was filed alleging four specific violations of the order of probation supervision of January 28, 2005. On Respondent’s motion, the fourth allegation was dismissed upon res judicata grounds; and the second and third allegations were dismissed as, even if they were proven, they did not amount to a violation of the order of probation. That left one allegation, which was the subject of a hearing on September 20, 2006. After hearing, that petition E was dismissed.

On September 25, 2006 the instant petition F was filed by the Presentment Agency, alleging two specific violations of the order of probation dated January 28, 2005. Thereafter and on October 13, 2006, petition G was filed, alleging three specific violations of the order of probation of January 28, 2005 and a warrant was issued for Respondent’s arrest. That warrant was executed on October 19, 2006; a denial was entered and the Respondent was remanded to the Juvenile Detention Center, where she still remains. (Although this violation petition is mentioned here, it is irrelevant to this Court’s determination regarding the instant motion, other than by way of history.)

Initially, Respondent claims that the current violation petition is jurisdictionally defective, in that it is not supported by non-hearsay allegations. Although until recently the failure to include non-hearsay allegations to support a petition alleging a violation of probation was jurisdictionally defective, mandating a dismissal of the petition, this no longer is the law.

The Family Court Act makes no reference to the amendment of VOP petitions from which Markim would have us draw the unlikely inference that they cannot be amended at all, even to correct ministerial errors. But we do not infer from the Legislature’s silence that it intended, for some hard to imagine reason, to make every word in a VOP petition sacrosanct. We conclude, rather, that, because a VOP petition is not a jurisdiction— creating document, the Legislature felt no need to specify when it can or cannot be amended; it left that issue, like the amendment of most documents filed at interlocutory stages of most proceedings, to the discretion of Family Court. VOP petitions are amendable with Family Court’s permission (citations omitted).

Lastly, Respondent argues that pursuant to Family Court Act §315.2, the instant petition should be dismissed “in the interest of justice,” and Respondent has thoroughly reviewed each of the seven factors which the Court may take into account, in order to grant such a dismissal. However, §513.2 is addressed solely to the underlying petition itself, regarding acts which would be crimes if the Respondent were an adult, and is not addressed to petitions alleging a violation of probation. Firstly, the very first sentence of that section states that it may be applicable to avoid “a finding of delinquency,” and many of the seven criteria specifically mention the word “crime.” Again, a violation of probation need not allege a crime and in fact the violation petition at bar alleges no crime, but merely violations of the Respondent’s probation. In addition, that section is at the beginning of Article 3 which deals solely with an original under-lying petition, and does not appear further in that Article, dealing with violations of probation.

In another interesting argument, Respondent alleges that, since the period of probation supervision has been stayed, that she therefore is no longer subject to the conditions of probation supervision, and therefore she could not have violated any such condition.

Family Court Act §360.2(4) states that when a violation petition is filed, alleging violations of an order of probation supervision or of a conditional discharge, then the time of probation or conditional discharge “shall be interrupted as of the date of filing of the petition. Such interruption shall continue until a final determination” of the petition has been made.

Accordingly, this statute is simply a tolling of the probationary period, and precludes the termination of the probationary period while the petition is pending. Although the statute tolls the probationary period, it in no way temporarily vacates it. Respondent’s counsel does not cite any statute or case law to the contrary, nor for her proposition that all of the conditions of probation supervision are somehow suspended so that the Respondent need not comply with any of them.

Were it otherwise, then all any Respondent would have to do would be to violate her conditions of probation, and immediately upon the filing of a violation petition, she would be free of any probationary conditions, including drug testing, drug treatment, meeting with the probation officer, conditions regarding schooling, therapy, counseling and the entire panoply of services usually mandated for probation supervision. In this Court’s opinion, such a result cannot have been contemplated by the Legislature when §360.2 was enacted, and this Court declines to give the statute such an interpretation. It is this Court’s considered opinion, that although the probationary period is tolled during the pendency of the violation petition, in no way is the Respondent released from the conditions of probation.

Respondent further argues that while he was on probation, that he had an absolute right to counsel before being questioned by the probation officer. This argument is rejected by this Court, as case law is clear that Respondent is not automatically entitled to counsel, not even counsel who represented him during the pendency of the initial juvenile delinquency matter (nor any subsequent violations of any order of probation). People v. Bing, 76 NY2d 331 (1990) is the leading case in this area, having been cited 205 times; and People v. Robles, 72 NY2d 689 (1988). See also United States v. Rea, 678 F2D 382 (2d Circuit 1982), stating at p. 390, that the defendant “had no right to have a lawyer present during an interview with his probation officer,” which interview resulted in a probation revocation hearing; and People v. Miller, NYLJ, 6/15/2005, p 19, col 1, Sup. Ct of New York, Kings Cty 2005, stating that a defendant’s right to counsel does not attach until the actual filing of the accusatory instrument (i.e. the petition alleging a violation of probation and “the pendency of that charge [before filing of the petition] did not, by itself, bar the police from questioning the defendant” on an unrelated matter. See also People v. Persons, supra at p. 196, in which the court held that, in a violation of probation case “the argument that the defendant was automatically represented by counsel on the violation of probation charges must fail. When a prior charge has been disposed of by dismissal or conviction, the indelible right to counsel disappears and the defendant is capable of waiving counsel on the new charge.”

Respondent further argues, in effect, that if the violations in the petition at bar occurred, that they did not violate any of the conditions of Respondent’s order of probation of January 28, 2005, and that the petition must be dismissed for that reason. As mentioned earlier in this decision, the probation order of January 28, 2005 contains the usual conditions of probation, together with the following: “cooperate with Brentwood Outreach House residential substance abuse treatment as directed by Probation.” The Court notes that the three specific conditions of the order of probation supervision of September 2004, do not appear in the order of January 28, 2005.

The first allegation in the matter at bar alleges that Respondent failed to report to probation on August 8, 2006, and again on August 22, 2006. If proven, that allegation would violate Paragraph 4 of the conditions of probation supervision, which states “Report to the Probation Officer as directed and meet with the Officer as directed.” The second allegation alleges that Respondent failed to attend her treatment at Glen Cove Community House on August 8, 2006. If proven, that allegation would violate paragraph seven of the conditions of probation supervision, which states “cooperate with a mental health or other facility as directed by the Probation Officer.”

Accordingly, Respondent’s instant motion to dismiss is denied in its entirety.

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