In April 1979, the Grand Jury of Kings County found reasonable cause to believe that respondents herein had committed acts which, if done by a person over the age of sixteen (16), would constitute the crimes of petit larceny, criminal possession of stolen property in the third degree, assault in the third degree and harassment.
A New York Family lawyer said that, petitions were filed in the above-captioned matters in the Intake a Part of Kings County Family Court. The office of Corporation Counsel of the City of New York appeared in support of the petitions and the Legal Aid Society was appointed to represent both respondents for the purpose of arraignment only. Stayed warrants were then issued for respondents and their parents, since they had failed to appear at the arraignment in this Court, per the Supreme Court order.
A New York Custody Lawyer said in the adjourned date, the two respondents and their mothers made timely appearances in this Court as did the Assistant Corporation Counsel and the Law Guardian (Legal Aid Society).On that date, with both respondents and their mothers present, the Assistant Corporation Counsel informed the Court that he was not ready to proceed to trial, since the complaining witness had failed to appear. Motions were therefore made on behalf of both respondents to dismiss the instant petitions. These motions are now before the Court and are the subject of this decision.
A Long Island Family Lawyer said to decide the instant motion, the Court is initially referred to certain 1978 amendments to the Criminal Procedure Law and the Family Court Act. The pertinent language of these two statutes reads as follows:
“When a court directs that an action or charge is to be removed to the family court the court must issue an order of removal in accordance with this section. Such order must be as follows: 1. It must provide that the action or charge is to be removed to the family court of the county in which such action or charge was pending, and it must specify the section pursuant to which the removal is authorized; 4. Where the direction is authorized pursuant to section 190.71 of this chapter, the court shall annex to the order as part thereof a certified copy of the grand jury request; 8. 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.”
A Long Island Child Custody Lawyer said when a case is removed to Family Court, not only is the order of removal to be transferred, but also the pleadings and proceedings upon which the case was prosecuted in the other court or courts. By definition, ” ‘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.” Furthermore, unless these documents are transferred and filed with the Clerk of the Family Court, a delinquency petition cannot be filed pursuant to FCA Sec. 731. Otherwise, whatever papers are filed will be and will be deemed to be insufficient as a petition under Sec. 731(1).
It is argued, however, that the procedural requirements of CPL Sec. 725.05 and FCA Sec. 731 are inconvenient and difficult, if not, almost impossible, to implement. The Court is therefore urged to recognize the practical burdens created by these statutes and to overlook their mandatory nature so as to accommodate the agency whose duty it is to comply with these prescriptions. The court however, is precluded from providing such an accommodation, which would amount to the Court acting in a legislative capacity. “A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration:”
Accordingly, it is ordered: 1) that respondents’ motions be granted on the ground that the instant petitions are defective on their face and jurisdictionally insufficient; and 2) that the instant petitions be dismissed without prejudice; and 3) that respondents’ motions to the extent they are grounded on the right to a speedy trial are dismissed as academic; and, finally 4) that the bail set and continued on both respondents be exonerated.
Here in Stephen Bilkis and Associates, we have Kings County Domestic Violence lawyers who will file the necessary complaint against your assailant spouse. We will make it a point that said spouse will be answerable to his aggressive acts against you. Thereafter, you can also consult our Kings County Order of Protection attorneys, who will represent you in Courts and obtain an Order for your Protection.