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In re: Gabriella


Slip Op 02376

Gabriella was tried as a person who needed supervision (PINS) and placed on one year’s probation. A juvenile delinquency petition was filed against Gabriella alleging physical abuse by her mother. She appeared in family court based on PINS violations and the court eventually remanded her to a detention facility. Gabriella left the facility. Her probation officer, Flores, tried to obtain a PINS warrant.

In March, the police visited Gabriella’s home to execute a warrant. She admits she did not comply and go quietly. Eventually, despite her protests she was taken into custody.

When Gabriella appeared in family court, she was served with a juvenile delinquency petition. The petition said Gabriela had violently resisted arrest. So violently that if she was charged as an adult she would be charged with attempted assault (Penal Law 120.05), resisting arrest (Penal Law 205.30), and obstructing government administration (195.05). Her lawyer stated that argued that the defendants were attempting to “boot strap a PINS case into a juvenile delinquency case. The court dismissed and sealed the petition. Gabriella was remanded to secure detention.

One of the causes of action in this case was attempted assault, as defined in NY Penal Law 120.05. There are three degrees of assault. Aside from the charge of murder, it is one of the most serious offenses in the penal code. This offense is classified as a violent crime, and a minimum offense starts at 5 years in prison. In more serious cases, it can bring up to 25 years in prison.

In general, assault is intending to cause physical harm to another, and the defendant does in fact cause the injury. What distinguishes 1st degree from 3d degree is the intent. With a first-degree offense, the injury is caused by using the instrument.

A hearing was commenced, the agency submitted an amended petition alleging that Gabriella committed acts which as if tried as an adult, would be crimes of resisting arrest (Penal Law section 205.30), and attempted assault in the 3d degree (Penal Law 120.1). The court accepted the petition.

The probation officer Flores testified that she roused Gabriella, despite being asked numerous times to respond to their requests, she refused. When they tried to put her in hand cuffs, she refused. She was described as being very aggressive. A struggle ensued and one of the officers was hurt.

At trial, Gabriella’s lawyer moved to dismiss the petition on the grounds that the agency didn’t make a prima facie case that Gabriella intended to injure the officer. There was insufficient evidence to show the officers were in fear of being injured. The court denied the Motion to Dismiss.

Gabriella testified the same story, that she was upset but didn’t want to hurt anyone.

The Judge said that the family court found that Gabriella had committed acts that would been resisting arrest is she was an adult. She was remanded to a secure detention center pending disposition.

At the hearing, defense counsel argued that the family court was prohibited in pursuing his client in court as a juvenile delinquent. Due to PINS violations, the family court placed Gabriela with her consent of social services for a one-year placement. The court granted Gabriela a one-year discharge. She was physically transferred to a nonsecured facility. Gabriela appealed.

The court had reversed the order,vacated the fact finding order, dismissed the March petition and remanded the matter to further proceedings pursuant to Family Court Act 375 (103 AD 888). Initially the court said that a PINS is someone who is consistently disobedient and behaviorally out of control.

The court said that the behavior was consistent with PINS behavior, but not juvenile delinquency. It said that the family court was doing what it wasn’t allowed to do, placing a PINS in a detention facility. The agency appealed (21 NY 3d 857). We affirm.

The family court sets out procedures for when a PINS runs away. Officers may apprehend, restrain or return a child. The family court equated Gabriela’s resistance to the restraint authorized by family court act 718. They concluded that she was a juvenile delinquent under the Family Court Act 301.2.

The restraint of PINS pursuant to the Family Court Act 718 is not that same as an arrest pursuant to the Family Court Act of 718 is not the same as a criminal arrest (Matter of Bernard G. 247 AD2d 91). A PINS who resists being restrained is not resisting arrest within the meaning of NY Penal Law 205.30.

The appellant has considered whether the court’s contempt powers can be used to bring a PINS in compliance by bootstrapping or, whether a child’s failure to comply with PINS requirements what the court calls engaging the PINS behavior is enough for imposing the sanction of contempt, changing the PINS into a juvenile delinquent. The conclusion is using a contempt in this way isn’t allowed (Matter of Daniel 57 AD 3d 666).

The court found that contrary to the Family Court’s behavior, it fell within bounds of acting “beyond the lawful control of a lawful authority” rather than NY Penal Law 195.05. The court said that they are not endorsing a trend prohibiting bootstrapping or proposing a test to minimize a PINS from a juvenile proceeding for obstructing a government administration.

The Order of the Appellate Court is Affirmed.

Family Law issues can be stressful, and cost you a lot of time and money. Speak to an experienced family lawyer from Stephen Bilkis and Associates for guidance and a free consultation at 1-800-NYNYLAW.


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