Published on:

Respondent Claims that Plaintiff Failed to State a Cause of Action



The matter before the court is a Motion filed by counsel for the Respondent for an Order pursuant to the provisions of Sections 100.15, 100.20, 100.30 and 100.40 of the Criminal Procedure Law, dismissing the petition for failure to state a cause of action. The original petition herein was filed by a Nassau County Detective assigned to the Juvenile Aid Bureau of the Nassau County Police Department.

The Respondent contends that since the petition was not verified in the manner prescribed by Section 100.30 of the Criminal Procedure Law and since the statement of the complainant which supports the petition was not verified as required by Section 100.20 of the Criminal Procedure Law, the petition must be dismissed.

The question presented to the court is: Do the said sections of the Criminal Procedure Law of the State of New York apply to the procedures of the Family Court? This court is of the opinion that they do not.

The Family Court of the State of New York came into existence on September 1, 1962. It is a civil court with no criminal jurisdiction and was established ‘to provide a due process of law’, and to avoid and do away with the inequities and in some cases illegal procedures that were practiced in the predecessor Children and Domestic Relations Courts especially in those cases that involved juveniles.

The Criminal Procedure Law was enacted by the 1970 legislature and became effective on September 1, 1971. Section 1.10 of the CPL provides: ‘1. The provisions of this chapter Apply exclusively to: (a) All criminal actions and proceedings commenced upon or after the effective date thereof and all appeals and other post-judgment proceedings relating or attaching thereto; and (b) All matters of criminal procedure prescribed in this chapter which do not constitute a part of any particular action or case, occurring upon or after such effective date.

The Family Court is specially noticeable by its absence from the above list of criminal courts. It is well settled and a long standing theory of the law that the legislature was well aware of existing laws at the time it made the change from the Code of Criminal Procedure to the Criminal Procedure Law. The Family Court had been in existence for a period of 9 years before the CPL took effect and the legislature saw fit to omit this ever growing statewide court from the list of courts to which the CPL would apply.

The court stated: ‘that the Due Process Clause has a role to play. The problem is to ascertain the precise impact of the due process requirement upon such proceedings. From the inception of the juvenile court system, wide differences have been tolerated–indeed insisted upon–between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles’.

In Gault, the court decided that due process and fair treatment require that the juveniles be granted certain rights that are available to all adults.

In connection with this privilege against self-incrimination, the court stated: ‘. . . juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ For purposes of the privilege against self-incrimination’.

This is certainly a far cry from saying a juvenile court is a criminal court and all the rules of criminal procedure should apply to the juvenile proceedings.

‘Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, A juvenile proceeding’s whole purpose and mission is the very opposite of . . . a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act. The inflexible restrictions that the Constitution so wisely made applicable to adversary criminal trials have no inevitable place in the proceedings of those public social agencies known as juvenile or family courts. And to impose the Court’s long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century’.

In a case, which was the first of the trilogy of cases involving juveniles decided by the highest court in the land, the court stated: ‘We do not mean . . . [70 Misc.2d 545] to indicate that the hearing to be held must conform with all the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.’

It can be readily seen from a reading of the three cited cases that the Supreme Court of the United States is not holding that a juvenile or Family Court is a criminal court to be governed by all the laws and procedures applicable to criminal courts. They have held that under the due process clause of the Constitution and in fair treatment for all, whether adult or child, certain guarantees of the Constitution apply to all people coming before the courts.

A review of the New York case law shows that while juvenile delinquency proceedings are quasi-criminal in nature, the Code of Criminal Procedure did not apply to the Family Court. In the latest Court of Appeals decision, the court stated in unequivocal terms,’. . . suffice it to say that Family Court procedure is not governed by the Code of Criminal Procedure’.

The procedure in the Family Court is, in fact, governed by provisions in the Act itself, or if there be more, then by rules adopted by the Administrative Board of the Judicial Conference, or by the Civil Practice Law and Rules. Of course, this procedure, as with all judicial proceedings, must satisfy the Constitutional requirements of due process and equal protection.

In this court, all statements taken by the Police Department are made part of the court file as provided by the Family Court Act and as stated in paragraph 9 of the form of petition set forth in the Act. Copies of these statements are available to the Respondent and his counsel prior to any hearing. This was the procedure followed in this case and in the opinion of this court, conformed with the law of the State of New York and satisfied the requirements of the Constitution of the United States.

Here in Stephen Bilkis and associates, we have lawyers who will inform you of your rights as a victim of abuse and violence. Call them today for a free consultation.

Contact Information