In re Desire S.

2023 NY Slip Op 23256

In the Matter of Desire S. A Person Alleged to be a Juvenile Delinquent, Respondent.

Docket No. E-4132-22

Family Court, Kings County

July 20, 2023

Unpublished Opinion

Patricia Holian, Esq. Christina Oddo, Esq. Corporation Counsel Attorneys for the Presentment Agency

Brian Zimmerman, Esq. Paul Aronson, Esq. Attorneys for the Respondent

JACQUELINE B. DEANE, J.

Introduction

The Respondent, Desire S., is before the Court for the most serious offense that exists in Family Court, and one that is thankfully rare here, a finding of Murder in the Second Degree, a Class A designated felony. On May 10, 2021, SB lost his life at the too young age of 18 as his adulthood was just beginning, and, in that same moment, Desire's life, at the even younger age of 16, was forever changed.

Procedural Background

Desire S. was arrested pursuant to a warrant on December 16, 2021 after a silent indictment was filed in Supreme Court on December 1, 2021, and charged with Murder in the Second Degree, PL 125.25(3) based on the allegation that she and Ricardo Dash committed or attempted to commit a robbery, and that during the course of that crime or in immediate flight therefrom, they or another participant in the crime caused the death of SB. Desire was also charged, along with Defendant Dash and two other adults, with Attempted Robbery in the Second Degree (PL 110/160.10(1)) and Gang Assault in the Second Degree (PL 120.06). Desire initially appeared in Kings County Supreme Court in the Youth Part pursuant to the adolescent offender ("AO") law, CPL 1.20(44), and was remanded without bail to the Division of Youth and Family Services ("DYFJ") secure juvenile detention center Crossroads, where she has remained to date.

As the facts alleged did not satisfy the three-prong test outlined in CPL §722.23(2)(c) and PL §70.02, the matter was presumptively removable to Family Court. The District Attorney's Office ("DA") stated its intention to make a motion to prevent removal based upon "extraordinary circumstances," which, pursuant to statute, they had to file "within thirty calendar days of arraignment." CPL 722.23(1)(a). However, the DA failed to file its motion until February 25, 2022, a full week after the deadline. The language of the statute is clear that the Court "shall order the removal" unless a timely motion is filed, and there is no permissible legal excuse for any delay past the 30th day. Id. Thus removal to Family Court was determined to be legally mandatory at that point by the Youth Part, Judge Walker, in his Decision and Order dated March 16, 2022 on Ind. # 74022-21.

Desire was then produced in Family Court for the first time on March 17th and her remand to secure detention was continued. The case was pending in Family Court before another judge who was later elected to Supreme Court, and this Court was assigned the matter in January 2023. After this Court issued a decision granting an outstanding motion for a protective order as well as held several conference dates, Desire made an admission to the top count of this petition on April 27, 2023. In admitting to the charge of felony murder, Desire acknowledged that she participated in a planned attempt to assault and rob SB on May 10, 2021, with other individuals and that, during the course of that attempted robbery, one of these individuals shot and killed SB with a gun. The Court ordered dispositional reports by the Department of Probation and the Court Mental Health Clinic as required for a case involving the potential for a restrictive placement pursuant to FCA 351.1(1). Following the receipt of the Investigation and Report ("I&R") and the Mental Health Study ("MHS"), the Court held a dispositional hearing commencing on June 1st, which continued on June 6th, 7th, 23rd, 28th and ended with summations on June 29th. The Court reserved decision to review the voluminous exhibits placed in evidence and adequately consider the issues given the seriousness of the case. ^[1]

In the plea agreement, the Presentment Agency made clear that it was seeking a restrictive placement with the Office of Children and Family Services ("OCFS") for Desire for a period of 5 years pursuant to Family Court Act §353.5(4)(a)(i), but agreed that they would not request that the initial mandated period in a secure facility be longer than 12 months, as opposed to the maximum period of 18 months permitted by statute. See FCA §353.5(4)(a)(ii). No other promises were made. Given that Desire is now 8 months past her 18th birthday, she cannot remain in an OCFS placement even if placed restrictively, for the full 5 years, as the statute sets a maximum age for placement of 23. FCA §353.5(4)(d). At the dispositional hearing, defense counsel has argued that Desire does not require a restrictive placement and that the "least restrictive alternative, consistent with the needs and best interests of the respondent and the need for protection of the community" would be placement in a non-secure Close to Home ("CTH") facility run by the Administration of Children's Services ("ACS"). See FCA §352.2(2)(a) & 353.3.

Evidence

The Court placed into evidence the various dispositional reports as well as adjustment reports provided by the detention facility run by the ACS Division of Youth and Family Justice ("DYFJ") as to the Respondent's adjustment over her more than one year in Crossroads, listed below:

Court's Exhibit I - I&R dated 5/11/23

Court's Exhibit II - Youth Level of Service Report dated 5/9/23

Court's Exhibit III - MHS dated 5/12/23

Court's Exhibit IV - MHS Addendum Testing Report dated 5/12/23

Court's Exhibit V - MHS Addendum Report dated 5/19/23

Court's Exhibit VI - Placement Recommendation Tool dated 5/12/23

Court's Exhibit VII - Adjustment Report dated 6/6/23

Court's Exhibit VIII - Adjustment Report dated 6/1/23

Court's Exhibit IX - Adjustment Report dated 5/13/23

Court's Exhibit X - Adjustment Report dated 4/27/23

Court's Exhibit XI - Adjustment Report dated 3/24/23

Court's Exhibit XII - Adjustment Report dated 2/17/23

Court's Exhibit XIII - Adjustment Report dated 1/5/23

Court's Exhibit XIV - Adjustment Report dated 11/18/22

Court's Exhibit XV - Adjustment Report dated 10/26/22

Court's Exhibit XVI - Adjustment Report dated 9/13/22

Court's Exhibit XVII - Adjustment Report dated 7/28/22

Court's Exhibit XVIII - Adjustment Report dated 6/28/22

Court's Exhibit XIX - Adjustment Report dated 5/2022

Court's Exhibit XX - Adjustment Report dated 4/6/22

Court's Exhibit XXI - CCA Report dated 5/12/23

Court's Exhibit XXII - Dr. Stuart's CV

Court's Exhibit XXIII - Adjustment Report dated 6/28/23

There have been significant changes to the placement facilities available in New York City for young people placed away from home on juvenile delinquency cases since the transformation to the system that occurred with the adoption of CTH in 2012. Additionally, there are, and have always been, more limited options for placement facilities at every level of security for female-identified juveniles in the system. Given the seriousness of the issues in this case and the need for Desire to receive appropriate mental health treatment and other support while in placement to be able to return to the community safely and with the skills and ability to realize her own potential, this Court found it imperative to hear evidence about the actual placement options that currently existed for Desire. Therefore, the Court directed both OCFS and ACS to provide representatives as the Court's witnesses to give in person testimony at the dispositional hearing about the facilities and their services that Desire could potentially be placed in at every level of placement the Court was considering. Counsel for OCFS and ACS each made the appropriate person available for testimony on June 28th and, after some initial questions from the Court, each was cross-examined by counsel.

In support of its argument for a restrictive placement, the Presentment Agency called the assigned Detective Walsh-Guzman to testify and asked to cross-examine Dr. Stuart from the Court's Mental Health Clinic who completed the MHS. The Presentment Agency also introduced numerous exhibits as follows:

Presentment Agency's Exhibit 1 - Missing Persons Reports

Presentment Agency's Exhibit 2 - Flash Drive of Grand Jury Evidence

Presentment Agency's Exhibit 3 - Facebook Page

Presentment Agency's Exhibit 4A & B - Photos

Presentment Agency's Exhibit 5 A&B - Screenshots of Snapchat

Presentment Agency's Exhibit 6 - Body Camera Footage

Presentment Agency's Exhibit 7 - DYFJ Length of Stay Protocol

Presentment Agency's Exhibit 8 - Social Media Photo

Presentment Agency's Exhibit 9 - Surveillance Photo

Presentment Agency's Exhibit 10 - Facebook Entries

Presentment Agency's Exhibit 11 - Surveillance Photo

Presentment Agency's Exhibit 12 - Victim's Family Impact Statement and Photos

In support of their argument for non-secure placement, the Attorneys for the Child ("AFC") did not call any witnesses and relied on aspects of the dispositional and adjustment reports in evidence as well as various certificates and academic accomplishments, including recently being the valedictorian of the Crossroads high school graduation ceremony, earned by Desire during her time secure detention.

Respondent's Exhibit A - Electronic Recording Report dated 9/27/21

Respondent's Exhibit B - NYC Dept of Education Passages Report Card & Transcript dated 6/26/23

Respondent's Exhibit C - Center for Community Alternatives ("CCA") Report dated 6/29/23

Respondent's Exhibit D - Photo of Valedictorian Medal

Respondent's Exhibit E - Photo of Certificates in Various Subjects

Respondent's Exhibit F - Graduation Photo

In terms of the dispositional reports, the I&R recommends Placement in a facility,...