Opinion
D-16725/09.
Decided on November 23, 2010.
I
These eight juvenile delinquency proceedings have come before the Court for a dispositional hearing after a determination that each respondent has committed at least one act which, if committed by an adult, would constitute a crime. In each case the Court requested that the New York City Department of Probation conduct an investigation into the juvenile's circumstances and that a written report be prepared for the dispositional hearing.
In each of these cases, as well as others, the Court discovered that the New York City Department of Probation employs a computer-based program which contains an inherent bias which results in more favorable and less severe dispositional recommendations being made to the Family Court for female juvenile delinquents than for similarly situated male juvenile delinquents.
The particulars of each case are summarized below.
1. Matter of Geraldine A. The Presentment Agency filed a juvenile delinquency petition pursuant to Family Court Act § 310.1 alleging that the respondent had committed acts which, were she more than 16 years old, would constitute the crimes of Grand Larceny in the Fourth Degree, Criminal Possession of Stolen Property in the Fifth Degree, and two counts of Attempted Assault in the Third Degree. The factual portion of the petition alleged that the respondent and another teenager attacked a women on the street, pulling the victim's hair, choking her, and punching her in the head with a closed fist several times. The victim's daughter was also attacked and she sustained a bruise to her face. On August 21, 2009 respondent entered an admission to the count charging Attempted Assault in the Third Degree. The Court scheduled the case for a dispositional hearing and ordered that the New York City Department of Probation conduct an investigation into respondent's family and social circumstances and prepare a written report of that investigation for the hearing (Fam. Ct. Act § 351.1). At the dispositional hearing the Court received the report of the Department of Probation, Department of Education records relating to Geraldine and affidavits of witnesses to the underlying incident.
With exceptions relating to serious and violent crimes which are not relevant to these cases, New York law exempts a person less than 16 years of age from criminal liability for the commission of acts which constitute felonies or misdemeanors ( see, Penal Law § 30.00; People v. Faith QQ. , 20 AD3d 584 [2005]; People v. McKoy , 60 AD3d 1374 , 1375 [2009], lv denied 12 NY3d 856 [2009]; Matter of Travis Y. , 27 Misc 3d 557 [2010]).
Family Court Act § 351.1 (2) provides, in pertinent part, that "[f]ollowing a determination that a respondent committed a crime and prior to the dispositional hearing, the court shall order a probation investigation".
The Department of Probation report indicated that the respondent is 14 years of age, that she was born in Peru, S.A. on April 7, 1995, that she presently resides with her mother in Corona, New York, and is enrolled in the 8th grade at Intermediate School 61 in Corona. The investigating probation officer asked respondent for her version of the incident and that she stated that "she was with some friends when one of these friends . . . threw some candy at another female individual. A fight followed. Upon observing her friend about to be bitten, Geraldine states she pulled the victim by her shirt to get her away from her friend. The probation report indicated that Geraldine "attended school 84% of the time during the Spring 2009 semester" and that she "had one suspension for an infraction of January 9, 2008." For the 2008-2009 school year, Geraldine's overall grade average was "59%", and that "she passed two of six classes." According to the Probation Officer, respondent's mother stated that she "believes her daughter to be doing well in school thus far this school year. She is confident that Geraldine will pass her classes" and that "her daughter is attending school daily and advises of no disciplinary issues thus far this year." The probation officer noted that although there is gang activity in respondent's neighborhood, there was no indication that she was involved with a gang. Additionally, the officer reported that the respondent has no alcohol, substance abuse, or mental health issues.
Based upon the fact that this incident was Geraldine's first contact with the juvenile justice system, her overall functioning at school, at home and in the community, the ability of her mother to properly supervise her, and her improved performance at school in 2009, the Probation Officer recommended that Geraldine be granted an adjournment in contemplation of dismissal ("ACD"). The Court continued the hearing and directed that the Department of Probation interview the known witnesses to the incident, that the New York City Administration for Children's Services be contacted to ascertain the nature of that agency's prior involvement with the respondent's family, and that updated information be obtained from the Department of Education. Additionally, as the Court had recently become aware that the Department of Probation was routinely using a diagnostic-type device known as the "Probation Assessment Tool" ("PAT") in formulating its dispositional recommendations, the Court directed that the Department of Probation produce a copy of the PAT relating to the respondent on the next court date.
Although not explicitly stated in the report, a recommendation by probation that a respondent be granted an adjournment in contemplation of dismissal necessarily includes a recommendation that the Court not adjudicate him or her to be a juvenile delinquent ( see, Fam. Ct. Act § 315.3 [1]; Matter of Edwin L., 88 NY2d 593, 600 [1996]; Matter of Janay P. , 11 AD3d 697 [2004]; Matter of Melissa VV. , 26 AD3d 682 , 683 [2006]). Additionally, where the Court grants an ACD it "must set forth its reasons therefor on the record", including why the interests of justice support that outcome (Fam. Ct. Act § 315.3 [3]).
At the continued hearing the Court received an updated probation report, updated school records, a statement from the victim, police reports relating to the incident, but not the Probation Assessment Tool (PAT). The Court was informed by a Supervising Probation Officer that probation would only release the PAT upon a written order of the Court. The hearing was continued and a written order directing production of the PAT was issued. Counsel for the Department of Probation subsequently appeared before the Court and argued that the PAT was "sensitive", that it created "conflicts"(which were never clearly specified), that the PAT report was exempt from disclosure under the "public interest privilege", and exempt from disclosure under the Freedom of Information Law (Public Officers Law § 87 [g]). The Court noted that these exact claims had been advanced by the Department in a juvenile delinquency proceeding in Kings County Family Court in which the Judge had ordered production of the PAT, and that the Appellate Division had affirmed the order directing production of the document by the Department of Probation ( Matter of Jasmine G. , 35 AD3d 604).
The Presentment Agency took no position as to this Court's order directing that the PAT be produced in this case or in any of the other cases which are the subject of this decision, but it is noted that the Law Department represented the Department of Probation before the Appellate Division in Matter of Jasmine G. ( 35 AD3d 604 (2d Dept. 2006) [noting appearances of counsel]).
The updated probation report contains a victim impact statement and updated information from the Department of Education reflecting that the respondent had been absent from school on three occasions between September 26 and October 8, 2009. The updated report also mentioned that respondent still maintains that she did nothing wrong, and that her actions were somehow justified. The updated report concluded with the Department of Probation reiterating its prior recommendation that Geraldine be granted an ACD. The Court also received correspondence from Safe Horizon, a crime victim assistance agency, which stated that an agency counselor had interviewed the two victims of the underlying incident as well as a third family member who had witnessed the violence. According to Safe Horizon, Mrs. Shu Fang Zheng stated that she suffered a broken fingernail as a result of the unprovoked attack, that a necklace she had been wearing was damaged, and that she also suffered emotional distress as a result of the incident. Zheng's 14-year-old daughter reported that she was punched in the face during the incident which resulted in bruising, she missed one day of school, and was suffering from nightmares and occasional headaches as a result of the incident. Zheng's son who was present during the incident informed the Safe Horizon counselor that "he sometimes feels scared when he is walking down the street".
On the next hearing date the PAT was produced and copies were provided to counsel for the Presentment Agency and the attorney for the respondent. The Court then proceeded to take the testimony of a Supervising Probation Officer concerning the PAT and the utilization of the PAT by the Department of Probation in making dispositional recommendations to the Family Court. According to the Supervising Probation Officer ("SPO"), the PAT was utilized in arriving at the Department's recommendation that respondent be granted an ACD in this case. The SPO explained that the PAT is "a tool to aid the probation officer in making a final assessment" in a juvenile delinquency proceeding, although she was unfamiliar with how the PAT was designed. While the SPO was aware that "an agency formulated the tool", she had no personal knowledge concerning who formulated the evaluative criteria of the PAT, although she understood that probation department personnel had worked with this unnamed agency, later identified as the Vera Institute of Justice, in creating the PAT. According to the SPO, the Department had begun utilizing the PAT in approximately 2003 when it undertook a reform of its mission in juvenile delinquency cases to assist in formulating dispositional recommendations which would be submitted to judges presiding over juvenile delinquency cases.
With respect to the PAT report concerning Geraldine A., the Court noted that it consists of two parts. Part One is designated as the "Questionnaire" and Part Two is designated as the "Summary". Part One is divided into seven categories which are (i) "Demographics"; (ii) "Current Offense"; (iii) "Legal History"; (iv) "Family and Home"; (v) "School"; (vi) "Community and Peers"; and (vii) "Drugs and Alcohol/Mental Health". Each of these seven categories is further subdivided into 34 "Questions" or criteria which appear to form the basis for analysis, although a review of the PAT utilized in this and other cases seems to indicate that several of the criteria are completely disregarded and not considered at all in conducting the assessment of the respondent.
The seven categories of Part One of the PAT and the subdivisions of those categories are as follows:
DEMOGRAPHICS: (1) Current Age; (2) Sex; and (3) Race/ethnicity.
CURRENT OFFENSE: (1) Severity of the top adjudicated charge; (2) Offense type of the top adjudicated charge; and (3) whether or not the adjudication constitutes a violation of a prior Family Court order of disposition which did not result in a placement of the respondent, such as probation, conditional discharge, or an adjournment in contemplation of disposition.
LEGAL HISTORY: (1) Age at first arrest; (2) total number of times youth has been previously arrested, excluding the current case and any previous arrests in which a court outcome resulted in the sealing of court and agency records pursuant to Family Court Act § 375.1; (3) whether any of the prior arrests involved violent criminal behavior; (4) the total number of previous juvenile delinquency of Persons in Need of Supervision ("PINS") adjudications; (5) the total number of previous PINS complaints, whether or not a PINS petition was filed with the Family Court; (6) excepting the current case, whether or not the juvenile has previously violated a Family Court order of disposition which did not result in placement; and (7) including the pending case, whether any warrants for failing to appear in court had ever been issued for the juvenile.
FAMILY AND HOME: (1) "supervision and boundary-setting" by a parent or other guardian in the juvenile's home or in a group home; (2) whether or not the juvenile respects boundaries set by the parent or guardian; (3) whether there is evidence of child abuse or neglect in the juvenile's current family in the past two years; and (4) whether or not the juvenile has run away from home for a period of more than 24 hours over the most recent 12 months.
SCHOOL: (1) how often the juvenile has attended school for the three month period preceding the current arrest; (2) the juvenile's behavior at school in the three months preceding the current arrest; (3) the juvenile's academic performance in the three months preceding the current arrest; (4) whether or not the juvenile was placed in a special education setting in the three months preceding the current arrest; (5) whether there has been any change in the juvenile's school attendance since the date of the current arrest; (6) whether there has been any change in the juvenile's behavior at school since the date of the current arrest; and (7) whether there has been any change in the juvenile's academic performance since the date of the current arrest.
COMMUNITY AND PEERS: (1) whether the juvenile has been involved in organized activities other than attending school over the past six weeks; (2) whether the juvenile has been involved in unorganized activities over the past six weeks; and (3) the friends, companions, or associates with whom the juvenile spends time with.
DRUGS AND ALCOHOL/MENTAL HEALTH: (1) based upon the juvenile's self-report or that of a parent, whether the juvenile uses or has used drugs or alcohol in the past; (2) frequency of alcohol use when juvenile not in detention in the past six months; (3) frequency of marijuana use when not in detention in the past six months; (4) frequency of heroin, crack cocaine, cocaine, methamphetamine use by juvenile when not in detention in the past six months; (5) frequency of any other drug usage when not in detention in the past six months; and (6) whether the juvenile has been diagnosed with mental illness or psychological disorder by a licensed professional.
Part Two of the PAT, the Summary, calculates a numerical value equal to the juvenile's "Total Asset Score", a score equal to the total number of "asset points" awarded by the PAT computer program, based upon responses given to the "questions' contained in part one of the PAT. The total number of points or "total asset score" equals what is referred to as the juvenile's "asset level". There are three "asset levels" which are "high", "medium" and "low" with a high asset level corresponding to the least restrictive possible outcome and a low asset level corresponding to the most restrictive types of outcomes. Finally, the PAT report provides a recommendation for disposition which corresponds to the total number of asset points and the juvenile's asset level. The PAT report also contains space for the probation officer to identify the juvenile's service needs as well as space for any comments which are entered by the investigating probation officer's supervisor. In the event that the investigating officer or the supervising probation officer or both decide to override the disposition recommended by the PAT program, there is a space for the reasons for the override to be stated.
A chart captioned "Continuum of Sentencing Options" which was produced by the Department of Probation in 2005 is appended to the decision.
In Geraldine A.'s case, the PAT computer program awarded "points" for the following items in Part One: (i) Current Age. Answer: 14. Score: 3; (ii) Sex ( i.e. gender). Answer: Female. Score: 14; (iii) Total Number of prior unsealed arrests. Answer: 0. Score: 6; (iv) School attendance for three months prior to underlying arrest. Answer: in class between 50 and 90% of the time. Score: 10; and (vi) Drug or alcohol usage. Answer: past use but not in last 6 non-detention months. Score: 5. Respondent's total PAT score was stated as "38", the "Total Asset Score" was stated as "38" which is described as "High Assets", and the "Asset Level Recommendation" is stated to be an ACD. The PAT identifies Geraldine's "key needs" to be "educational" and "community/ peer", but the PAT makes no specific service recommendations, and the dispositional recommendation and service needs for the respondent were incorporated into the written probation report previously submitted to the Court.
While respondent's PAT contained "answers" for such items as "race/ethnicity", the grade of the highest adjudicated crime, the fact that the criminal conduct involved "violence against person", the issuance of arrest warrant to secure Geraldine's appearance, the fact that there have been no previous violations of any prior orders of disposition, the fact that respondent's mother does not appear to always set boundaries or supervise her, that respondent does not always obey her mother's rules and regulations, the fact that respondent was passing less than half of her classes at school, that there had been an "improvement" in her school attendance since her arrest, that her school behavior had not deteriorated since her arrest, that she was not involved in extracurricular activities, that she had used alcohol in the past but not used drugs per her own report and that of her mother, and that she had no previous diagnosed psychiatric conditions, none of these factors, either negative or positive in nature, resulted in any "score" and they apparently were not considered by the PAT computer program in arriving at respondent's "Total Asset Score" of 38.
The SPO explained the mechanics of how the PAT is completed and how the completed PAT report is utilized to make probation's dispositional recommendation to the court. According to the SPO, the answers to the questions in the PAT are obtained from department records, court documents, and from the juvenile and are then entered into the PAT computer program by the investigating Probation Officer. Although some answers result in "points" which are automatically "awarded" by the computer program, not all of the answers to the various questions in the PAT program result in an award of asset points and thus these questions do not figure in the recommendation arrived at by the computer program.
The SPO stated that PAT reports are maintained as internal documents by the Department and they are not given to the parties or the judge, nor is the PAT report mentioned in the written report which the Department of Probation submits at the dispositional hearing. Given the Department's established practice of not disclosing the use of the PAT computer program or the report produced by the PAT program, there has been no opportunity for case specific consideration of the PAT computer program and its impact on the recommendation made by the Department of Probation.
The importance of the PAT program in the Department of Probation's investigation process should not be underestimated. As reflected by a department flow chart which is appended to this opinion, the PAT program and the actual probation investigation seem to be equal parts of the process through which a recommendation is arrived at and offered to the court.
The SPO explained that the final determination as to the dispositional recommendation made in each delinquency case is made by the supervising probation officer who reviews and approves the report and recommendation made by the investigating probation officer. While the recommendation produced by the PAT program is not necessarily inflexible, the process for making a dispositional recommendation other than that generated by the PAT program, known as "overriding the PAT recommendation" is somewhat cumbersome. For example, where the investigating probation officer disagrees with the dispositional recommendation produced by the PAT program, the officer's revised dispositional recommendation is subject to review by the officer's supervising probation officer and the Department of Probation Branch Chief. If the SPO disagrees with the dispositional recommendation of the investigating probation officer, the SPO can also override the recommendation and make a different recommendation, and the recommendations of the investigating officer and the SPO are then subject to revision by the Branch Chief, who is the highest ranking Probation Officer in each county.
For example, in Matter of Jasmine G., the SPO overrode the recommendation made by the probation officer who conducted the investigation "after reviewing the juvenile's PAT score" ( 35 AD3d at 605).
Probation Officer John Desenchak, who conducted the investigation and prepared the written report concerning Geraldine A., testified at the dispositional hearing. Mr. Desenchak has been a probation officer for 18 years, and he has been assigned to the Family Court for the past four years. During the four years he has worked in Family Court, Officer Desenchak has utilized the PAT program in "a few hundred" cases in which he has been assigned to conduct the investigation in a juvenile delinquency proceeding. Desenchak noted that Geraldine was awarded "asset points" by the PAT program based upon her age and her gender, and when he was asked whether male juvenile delinquents are awarded asset points for their gender, he explained that in his experience, males received less points than females, although he could provide no reason for the disparate treatment afforded to male delinquents. According to Officer Desenchak, the probation officer enters information into the PAT computer program and the computer assigns "asset points" based upon that information. The more "points" a juvenile accumulated under the PAT program the more likely it is that a less severe dispositional alternative or outcome (such as an ACD) would be recommended to the Court.
Officer Desenchak's testimony was continued to provide him with the opportunity to review his files of those juvenile delinquency cases where he had conducted an investigation and in which he had utilized the PAT program to make a recommendation as to disposition. When his testimony resumed, Desenchak indicated that "we had reviewed some PATs" and that based upon that review "I cannot definitively say in all cases to answer your question, that boys get less points than girls." The Court then noted that he previously testified that the PAT computer program assigns a point value to information entered into the program by the investigating probation officer and that, for example in Geraldine's case, when "female" was typed into the gender section of the PAT program, the respondent was automatically credited with 14 "asset points".
The Court then inquired whether Geraldine's PAT "asset score" would have been lower had "male" rather than "female" been entered. Desenchak stated that "I believe it would have been lower, but I don't know if that is true in all cases." Officer Desenchak further explained that based upon his understanding of the PAT computer program "girls in general get more [points] than boys . . . [h]ow those numbers are arrived at, I don't know" (emphasis added). When asked by the Court if he knew of any reason why the PAT analysis is programmed to automatically award more "asset points" to girls based merely upon gender, Officer Desenchak indicated that he was not aware of any reason for that gender-based distinction. The Court asked whether the staff of the Department of Probation had performed tests with the PAT program whereby they substituted female for male in the program, leaving all other PAT entries the same, and what the results of such tests were. According to Officer Desenchak, such tests had been performed and "we found generally [that] boys got less than girls" (emphasis added), and that with respect to the total asset scores produced by the PAT program, as between male and female juvenile delinquents, "[t]hey are different, I would not say they are close" (emphasis added).
Officer Desenchak stated that "I remember looking at 15 year old boys, maybe more than one case where the boy got zero" for gender. He explained that "[t]he data is put in and the computer assigns a value to it", and that "age and sex" are categories of information for which the PAT computer program assigns a point value, although only females receive additional asset points for their gender. Desenchak further explained that based upon his review of past cases he has worked on, in the vast majority of cases involving 15 year old male juvenile delinquents, the male respondent received 0 points in the gender category of the PAT computer program, although female respondents are invariably awarded 14 asset points in the gender category. In Geraldine A's. case, the 14 asset points awarded to her based solely upon her gender raised her total asset score to 38 points, which is above the 33 total asset points needed to be characterized as a "high asset level" which correspond to the PAT program recommending that the respondent be given a Conditional Discharge or an ACD. Of course, had the PAT program not mechanically awarded Geraldine A. 14 asset points for her gender, then her total asset score would have been 24 points, which likely would have constituted "medium assets" and generated a recommendation that Geraldine A. be placed under some form of probation supervision.
While Officer Desenchak did not, or possibly could not, necessarily agree that Geraldine A's. gender was determinative in the PAT program having recommended that she receive an ACD, he could not explain how, absent an override, Geraldine A. would have received an ACD recommendation had she not received the 14 points for being a female. In fact, Officer Desenchak confirmed that a respondent receiving a "total asset score" of 24, which would have been Geraldine A's. "total asset score" without the 14 points awarded for gender, would be recommended for adjudication as a juvenile delinquent with a disposition of probation supervision for up to 24 months, not recommended for an ACD.
The dispositional hearing was continued and at the conclusion of the proceedings, respondent was adjudicated a juvenile delinquent by the Court (Fam. Ct. Act § 352.1), and she was placed under the supervision of the Department of Probation for a period of 12 months under specific conditions set forth in the Court's order (Fam. Ct. Act § 352.2 [b]; § 353.2). While the Court considered the recommendation in the probation report and the recommendation made by the PAT computer program, incorporated as it was without mention in the Department's ultimate recommendation, upon consideration all relevant factors, the Court found no basis to grant Geraldine A. an ACD or any outcome which did not involve an adjudication of juvenile delinquency (Fam. Ct. Act § 315.3; see, Matter of Julissa R. , 30 AD3d 526 , 527; Matter of Kadeem W. , 31 AD3d 777 , 778; Matter of Michael E. , 48 AD3d 809 , 810; Matter of Thomas D. , 50 AD3d 897 , 898-899; Matter of Eunique B., 73 AD3d 764). Based upon the Court's considered judgment, it was determined that Geraldine required supervision and treatment, both of which could be provided to her by or through the Department of Probation ( see, Matter of Edwin L., 88 NY2d 593, 600).
2. Matter of Tiffany H. The 14-year-old respondent was charged with possession of a weapon, an 8-inch-knife, inside of a New York City public school. Respondent entered an admission to Unlawful Possession of Weapons by Persons Under Sixteen (P.L. § 265.05), and the Court directed that the Department of Probation investigate and prepare a report. The Department was further directed to produce any PAT report concerning the child. According to the probation report, respondent denied that she knowingly possessed the knife, claiming that a school mate had placed it inside of her bookbag without her knowledge. Probation reported that "[s]ince 9/09/09, the respondent has been absent 13 days, late 4 days, and present 133 days, that she has regularly cut classes to the extent that she missed 41 classes in March and 24 classes in April. However, because respondent's overall school attendance for the past two semesters exceeded 50%, she was awarded 11 asset points by the PAT program. Although not factored into the PAT program, the Department reported that Tiffany H. had a 45-day suspension on June 7, 2010 for "intimidating and bullying behavior", a 5-day suspension on April 23, 2010, a 5-day suspension on March 24, 2010 for bringing alcohol to school for a friend's birthday, a suspension on January 1, 2010 for fighting at school, an 8-day suspension on September 24, 2009 for possessing a weapon other than a firearm at school, and a 5-day suspension on March 21, 2007 for "shoving, pushing" or engaging in injurious behavior. When the probation officer asked Tiffany H. why she fights at school, she responded that "other students are jealous of how she looks and how she dresses."
According to probation, Tiffany H. passed 5 of her 7 classes during the Fall 2009 semester and her grade point average was "69.28%". For the first marking period of the Spring 2010 semester Tiffany H's. grade point average was "53.00%" and for the second marking period, her grade point average was "61.43%". The teachers' comments on the report card reflect that Tiffany H. has had excessive absences, missing or incomplete projects or work, poor work habits, and she is a distraction in the classroom. In addition, the report card comments indicate that Tiffany H. has been absent on examination days and that she has failed two Regents Examinations. Tiffany H. told the probation officer that she was failing most of her classes because she cut class and she failed to complete her homework or class work. By the time probation interviewed Tiffany H. and her mother, she had transferred to a new school and had improved her academic performance.
The PAT report for Tiffany H. reflects that she received "asset points" in the following categories: gender (14 points), absence of prior arrests (6 points), school attendance in the three months prior to her arrest ("attends classes regularly-at least 90 percent of the time") (11 points), no history of drug or alcohol use (5 points). Tiffany H's. "total asset score" was reported to be "36" points and the PAT program recommended an ACD. The probation report noted that Tiffany H. had a recent of history of cutting classes as well as prior school suspensions for inappropriate or violent behavior at her prior school. However, based upon the probation officer's overall analysis, especially the willingness of respondent's parents to engage her in community-based services and educational support services, the officer recommended that Tiffany H. receive an ACD.
At the conclusion of the hearing the Court determined that Tiffany H. was in need of supervision and that an ACD, an outcome which does not result in an adjudication of juvenile delinquency, would not be appropriate. In making that decision, the Court took particular note of respondent's extremely poor class attendance history, the reports of her teachers concerning her performance in their respective classes, her history of at least five school suspensions for fighting, bringing alcohol into the school, and for possessing weapons on school grounds. Tiffany H. was adjudicated to be a juvenile delinquent and placed on probation for a period of 12 months, with specific conditions imposed by the Court.
In rejecting the recommendation that Tiffany H. receive an ACD, the Court observed that while the PAT program awarded Tiffany H. a total of 36 "total asset points", just three points above the minimum for classification as a "high asset level" and the corresponding recommendation for an ACD or a Conditional Discharge, 14 of the asset points were attributable solely to respondent's gender, and 11 points were awarded for attending at least 90% of her classes in the three months preceding her arrest. Although Tiffany H. has a documented history of class absences, failing grades, and multiple school suspensions for actions which included weapons possession and fighting, the PAT only considered school based incidents and attendance in the three months preceding the juvenile's most recent arrest. The PAT program is not designed to consider Tiffany H's. suspensions, poor academic performance, and class cutting which did not occur in the three months preceding her arrest for the underlying incident, and even were the PAT computer program designed to take account of such circumstances, there would have been no impact upon the juvenile's total asset score, as the PAT computer program never deducts asset points for bad behavior. In this particular case, were the 14 asset points for gender awarded deducted then Tiffany H. would have had a total asset score of 22 points, which would have fallen in the "medium" asset level and would have corresponded to a recommendation of probation supervision. Indeed, had the 11 points awarded for school attendance also been deducted, then Tiffany H.'s total asset score would have been a mere 11 points, which would have fallen into the "low asset level" and would have corresponded to probation supervision with a community-based program such as the Enhanced Supervision Probation or the Esperanza program, or placement with OCFS. .
3. Matter of Jaskarnjit S.. Respondent, a male, was charged with committing the crimes of Assault in the Second Degree (as a Hate Crime), Assault in the Second Degree, and Menacing arising out of an altercation involving himself, three other students and the victim, which resulted in the victim sustaining a one-inch laceration above his eyebrow which did not require medical attention. Because there was suspicion that respondent and his accomplices acted with religious prejudice, the felony Assault in the Second Degree charge was charged as a Hate Crime. For reasons not explained in the petition, nor explained at a trial, as respondent eventually entered an admission to the misdemeanor of Assault in the Third Degree, it appears that after the victim was assaulted, he returned to school with his father and pointed out his assailants and that the victim's father was arrested after one of the four assailants told police that he had "squeezed his arm".
At the dispositional hearing the Department of Probation submitted a report which recommended that respondent be adjudicated a juvenile delinquent and placed under probation supervision. According to the probation report, respondent told the probation officer that the incident began when the victim confronted him and his three friends because they had made fun of him. "The respondent stated that it started out as a push, then the respondent initiated the first punch and the complainant hit him two times. The respondent stated that the complainant told his little brother to get a knife' and the respondent and his [friends] ran. The respondent stated that the complainant's father grabbed him and brought him to the school and the respondent was arrested." The probation report indicated that respondent has no prior legal history, he gets along with his family and obeys his parents. Respondent is a very good student with good attendance at school and no history of being disciplined by school authorities.
In support of the Department's recommendation that respondent be adjudicated to be a juvenile delinquent and placed under probation supervision, the probation officer stated that "[o]verall, it appears that the respondent does not have any behavior problems at home and in school. However, due to the instant offense, which is a cause of concern in the community (sic), it appears that the respondent could benefit from additional supervision." The probation report also noted that the victim suffered physical injury as a result of respondent's actions and it was alleged that respondent and his accomplices were motivated by bias, although that was neither proved nor admitted in the course of the proceedings.
The PAT report for Jaskarnjit S. states that he received a "total asset score" of 21 points based upon the information which was entered into the computer program. Those 21 points were derived from points awarded in the following categories: no prior arrests (6 points), school attendance at least 50 to 90% of the time (10 points), and no prior use of drugs or alcohol (5 points). Unlike the female delinquents discussed in this opinion, Jaskarnjit S. received 0 points for his gender and 0 points for being 15 years old. Upon consideration of the record of the proceeding, including the report and recommendation of the Department of Probation, the fact that this was respondent's first offense, his academic performance, and his behavior at home, the Court declined to adjudicate Jaskarnjit S. to be a juvenile delinquent as the Court was not persuaded that he required supervision by the Department of Probation. The Court also noted that one of the accomplices who had also been charged with juvenile delinquency as a result of the incident had previously been granted an ACD by the Family Court, and religious prejudice did not appear to be the prime factor motivating the underlying incident.
Of the 34 total categories of the PAT in which "asset points" could be accumulated, the respondent received "points" in only three of them.
While respondent's total asset score from the PAT program was 21 points, had Jaskarnjit S. been a similarly situated female, that female delinquent would have received at least an additional 14 asset points based solely upon gender, resulting in a total asset score of 35 points, bringing the total into the "high asset" level and absent an override, a recommendation for an ACD or a Conditional Discharge. At the conclusion of the proceedings, the Court granted an ACD to the respondent upon specific conditions which included that he participate in adjustment services through the Department of Probation, and that he observe an order of protection in favor of the victim. The Court also directed that the Department of Probation monitor Jaskarnjit S.'s compliance with the conditions of the ACD and that the Department was directed to refer respondent to any appropriate community-based programs, including a program specifically geared to religious and cultural tolerance, if appropriate.
4. Matter of Jaheem S. Respondent and an accomplice were charged with robbery for forcibly stealing a cell phone from the pocket of the victim, and respondent made an admission to committing an act which would have constituted the crime of Grand Larceny in the Fourth Degree. At the dispositional hearing the Department of Probation submitted its report in which Jaheem S. provided his version of the events to the probation officer in which he claimed that his friend actually took the cell phone from the victim, although he conceded that he was present during the incident. Probation reported that respondent had no prior legal history and that he is well-behaved at home. Respondent's father resides in Atlanta and Jaheem S. has only sporadic telephone contact with him. At the time of the hearing Jaheem S. was in the 9th grade at John Adams High School where he had a 75% average and was passing all of his classes. Both Jaheem S. and his mother reported no behavioral or attendance problems at school, although the Department of Education reported that he had been suspended on April 14, 2010 for possession of a weapon at school.
In evaluating the information gathered, the probation officer noted that Jaheem S. had accepted responsibility for becoming involved in the incident during which his friend stole the victim's cellular phone. Respondent was remorseful about his involvement and stated that he had never been involved in such an incident before. Both Jaheem S. and his mother were of the view that this was an isolated incident which was highly unlikely to be repeated. The probation officer noted that respondent has positive relationships with his family, he is not a disciplinary problem at home, and he is doing well at school. While the probation officer determined that it appeared that Jaheem S. did not require additional supervision in the community, a final recommendation was deferred pending further investigation into the weapon incident which occurred at his school in April 2010.
When the hearing continued, the Department of Probation filed an updated report as well as a copy of the PAT report relating to the respondent. According to the updated report, respondent's high school guidance counselor reported a significant change in respondent's school attendance, class attendance, and academic performance since early February of 2010. For example, Jaheem S.'s Algebra teacher reported that he has "started acting out lately", that he has been "getting loud" in class, and was "always asking [classmates] for money and homework". The teacher further reported that Jaheem S. had failed to turn in "numerous" homework assignments and that he had "never passed an exam." His Global Studies teacher reported no issues other than "streaks of laziness". Respondent's academic advisor reported that respondent is "generally disruptive" in class, he is "uncooperative" and he "likes to instigate arguments" and "very rarely completes [his] work", and his Guidance Counselor indicated that respondent's grade point average had slipped from 72% to 62.14% in one marking period. With respect to the April 2010 suspension for possession of a weapon at school, the Guidance Counselor reported that the incident involved the possession of "a lighter" at school, rather than a weapon.
The PAT computer program awarded Jaheem S. a "total asset score" of 21 points and those points were derived as follows: no prior unsealed arrests (6 points), school attendance of 50% to 90% in the 3 months preceding the underlying arrest (10 points), no past or present use of drugs or alcohol by self-report (5 points). While the PAT program awarded points to Jaheem for his school attendance in the three months preceding his arrest, which here was November 2009 through February 2010, the information obtained by probation establishes that the downturn in respondent's school attendance, academic performance, and school behavior commenced in or about February 2010. However, based upon the structure of the PAT program, there was no ability for the computer program to consider these more recent negative developments and the program automatically awarded the designated asset points in this category. The 21 total asset points awarded to Jaheem S. by the PAT program placed him in the "medium asset level" and the corresponding dispositional recommendation made by the computer was "Intensive Community Program/OCFS placement". The probation report recommended that Jaheem S. be placed away from the community, which indicates that the probation officer and the SPO approved of an override of the PAT recommendation automatically made for delinquents whose total asset scores place them in the "medium asset level".
An analysis of the PAT report for Jaheem S. reflects two contradictory circumstances. Had Jaheem S. been a similarly situated female delinquent, an additional 14 asset points would have been automatically assigned based upon gender, raising the total asset score of 21 to 35 points. A total asset score of 35 points is in the "high asset level" category and, absent an override, would result in a recommendation of an ACD or a Conditional Discharge. Had the probation officer and SPO decided to override the PAT program recommendation, it is likely that the recommendation would have been for respondent to be treated as someone with "medium assets" and the recommendation would have been probation supervision. Thus, Jaheem S. was clearly treated more severely than a similarly situated female would have been, as the override of the PAT recommendation resulted in a recommendation for placement.
In contrast, while the PAT program awarded Jaheem S.10 asset points for successful academic performance, attendance and behavior in the three months preceding his most recent arrest, had those points not been awarded, and such a denial would have been objectively reasonable, based upon respondent's documented unsatisfactory academic performance and behavioral issues at school, Jaheem S. would have had a total asset score of 11 points, which would have put him in the "low asset level" category, and would have resulted in a PAT report recommendation of placement with OCFS or intensive probation supervised by an authorized agency.
At the conclusion of the dispositional hearing, Jaheem S. was adjudicated to be a juvenile delinquent based upon his clear need for supervision and treatment. The Court placed him on probation for 18 months and directed that he perform 300 hours of community service and that he pay restitution of $300.00 to the victim for the cost of the cell phone which had never been recovered.
5. Matter of Stephen C. A juvenile delinquency petition was filed against Stephen C. alleging that he committed acts which would constitute the crimes of Attempted Robbery in the Second Degree, Attempted Grand Larceny in the Fourth Degree, and Attempted Assault in the Third Degree. The petition alleged that respondent and three other juveniles, including Jennifer S., and one adult attempted to steal an I-Pod and money from the victim on a public street. The victim was punched in the face by Stephen C. when he resisted the taking of his property. The four accomplices then pushed the victim into a fence causing him to fall to the ground and all five assailants then proceeded to kick the victim about his body while he was lying on the ground. Eventually the victim was able to get up and run away as the five assailants chased after him. Respondent subsequently entered an admission to having committed an act which would have constituted Attempted Grand Larceny in the Fourth Degree.
At the dispositional hearing the Department of Probation submitted a report which indicated that respondent, who is enrolled in a special education program, missed 41 days of school and he was late to school another 38 days during 2009-2010. Additionally, it was reported that respondent has a history of school suspensions for engaging in fights at school. Respondent told the probation officer that the other four people involved in the incident ranged in age from 11 to 18 years and that the incident occurred near where he lives. According to respondent, he did not know the victim and he got involved as he was "hanging out" with the other four perpetrators and "he followed his friends that wanted to approach the complainant and to take a cell phone or I-Pod." Respondent's mother informed the probation officer that her son's father had been deported to Jamaica, W.I. in 2004 and respondent's uncle is involved in providing him with guidance. Respondent's mother indicated that he is not a problem at home and that he observes her curfew, and probation reported that respondent has no prior history of delinquency or PINS cases and that he expressed remorse for his actions. Respondent participates in the Police Athletic League, the Police Explorers program, and other community activities, and his mother expressed no concerns about her son remaining at home. Based upon its investigation, the Department of Probation recommended that respondent be placed under general probation supervision.
The PAT report for respondent was submitted to the Court. The PAT awarded 26 asset points to the respondent as follows: age-13 years old (5 points); no prior reportable arrests (6 points); attended between 50% and 90% of scheduled school days and classes in three months preceding underlying arrest (10 points); and no reported use of drugs or alcohol (5 points). The PAT classified respondent's 26 total asset points as "medium assets" and the PAT recommendation was for probation supervision. While the PAT report indicates that, for example, respondent is a male of "Black, non-Hispanic" ethnicity, that respondent was enrolled in special education prior to his arrest, and that his school attendance has declined since his arrest, these factors did not affect the total asset points awarded to respondent. The PAT also did not account for the fact that Stephen C. has a history of school suspensions for fighting or the fact that respondent was initially charged with the crime of Robbery in the Second Degree which involves the forcible stealing of property from the person of another. Respondent was ultimately adjudicated to be a juvenile delinquent and was placed under probation supervision for a period of 18 months. The Department of Probation was directed to enroll respondent in its Enhanced Supervision Program, he was directed to perform community service, and obey other conditions imposed by the Court.
Of course, had Stephen C. been a similarly situated female delinquent, like his accomplice, Jennifer S. (discussed below), "she" would have been awarded an additional 14 asset points based upon gender, bringing the total asset score to 40 points, which is in the "high asset level". Under that circumstance, the PAT program would have recommended that the juvenile be granted an ACD or a Conditional Discharge.
6. Matter of Jennifer S. Jennifer S. was one of three juveniles and one adult, the sister of Jennifer S., who were charged as accomplices of Stephen C. (discussed above). The highest charge in the juvenile delinquency petition filed against Jennifer was Robbery in the Second Degree but like Steven C., Jennifer S. entered an admission to having committed an act which would have constituted the felony of Grand Larceny in the Fourth Degree. According to the investigation report filed by the Department of Probation, Jennifer S. told the probation officer that she, her sister, and three friends, one of whom was Stephen C., happened upon the victim on the day of the incident. One of her companions "ran up on the [victim] and started to punch him in the face. At the same time, Steve asked the [victim] for his I-Pod. The [victim] did not give up anything. Then Autrell started to choke the [victim] causing him to fall to the ground."
The probation officer noted that Jennifer S. "admitted her guilt to the instant offense, stating she blocked the [victim's] path, preventing him from leaving, but denied hitting or trying to rob the [victim]." According to the victim, "he was approached by five kids who asked if he had anything in his pocket. He replied no', but one of the kids tried to put his hand in his pocket. He pushed the kid's hand away, but that kid then punched him in the face, then the others pushed him and he fell to the ground [and] everyone started to kick him. He was able to get up and he fled the group" of assailants.
The Department of Probation reported that Jennifer S. has no prior legal history, and that she resides with her maternal aunt, her uncle, two siblings, and three first cousins in Queens County. Jennifer's maternal aunt has had custody of Jennifer S. and her two siblings since Jennifer S. was two years old due to their mother's history of drug abuse, prostitution, and incarceration. The home is relatively stable and respondent's aunt works for the MTA and her uncle is an electrician. At the time of the investigation, Jennifer S. was enrolled in the 8th grade at I.S. 59, and that she is an "average student". According to Department of Education records, Jennifer S. was absent 15 out of 89 school days in the Fall 2009 semester but absent only 3 out of 89 days in the Spring 2010 semester. In the 2009-2010 academic year, Jennifer S. reportedly "passed 2 out of 7 subjects" and there were no reports of any behavioral problems at school. Jennifer's aunt reported that she presents no behavioral problems at home and she expressed no reservations to having Jennifer S. remain in her custody. Both Jennifer S. and her aunt indicated that Jennifer had associated with "negative peers" and that such associations ceased after Jennifer's arrest. The probation officer indicated that as "[i]t appears that this offense is an isolated incident . . . ongoing court supervision is not deemed necessary at this time" and it was recommended that the Court grant an ACD.
The PAT report was submitted and entered into evidence. The report states that the PAT program awarded Jennifer S. a total asset score of 38 points which were derived as follows: current age-14 (3 points); gender (14 points), no other reportable arrests (6 points); attended between 50 and 90% of school days and classes (10 points); and no reported use of alcohol or drugs (5 points). Jennifer S.'s total asset score of 38 points constituted "high assets" which correlated to a computer generated recommendation of an ACD or a Conditional Discharge. Just as in the case of her co-respondent, Stephen C., the PAT erroneously states that the "top adjudicated charge" was a class A misdemeanor involving "property", although both juvenile were initially charged with committing the felony of Robbery in the Second Degree, and admitted to committing an act of Grand Larceny in the Fourth Degree, the theft from the person of another, also a felony. Of course, had Jennifer S. been a similarly situated male delinquent, her total asset score under the PAT program would have been reduced by the 14 points awarded for gender, and the resulting total asset score would have been 24 points. A total asset score of 24 points would have been in the "medium asset level" range and the PAT computer generated recommendation would have been for some type of probation supervision. The fact that Jennifer S. is not male resulted in an artificially inflated total asset score which pushed her into the "high asset level".
The Court could find no cogent reason why Jennifer S. should be treated differently than her accomplice, Stephen C. and like him, she was placed under probation supervision for a period of 18 months. Although each case was considered individually, both Jennifer S. and Stephen C. were equally culpable for committing the robbery, assault and larceny charged in the petition and their social and family circumstances were substantially similar. While the recommendation made by the PAT program differed for these two juveniles, the differentiation was solely based upon the fact that the juveniles were of different genders.
7. Matter of Anastasios K. The 15 year old respondent was alleged to have committed a robbery of a livery cab driver and he was charged with Robbery in the Second Degree, Assault in the Second and Third Degrees, Grand Larceny in the Fourth Degree, and Criminal Possession of Stolen Property in the Fourth Degree. Respondent entered an admission to having committed an act which would constitute the crime of Robbery in the Third Degree, and the case was scheduled for a dispositional hearing. At the hearing, the Court received a report from the Department of Probation. According to that report, Anastasios K. resides in Flushing with his mother and his aunt and at the time of the report he was enrolled in the 10th grade at Cardozo High School.
Respondent told the probation officer that he and two friends had called for a livery cab and while they were being driven in the cab, they noticed the driver's wallet, which contained $200.00 in cash, in the ash tray. When the cab stopped for a traffic light, "his friends grabbed the wallet and threw the wallet in his lap", and all three passengers exited the cab to run away. The driver caught the respondent who struggled with the driver and was able to escape. The livery cab driver presented a different scenario to the probation officer. According to the driver, Anastasios K. was his only passenger and as he was driving the respondent "grabbed his car cup which was full with about $225.00, and he attempted to flee." The driver grabbed the respondent but he was able to escape after a struggle.
The mother of Anastasios K., who is widowed, described her son as respectful towards her and other adult family members. And she indicated that her son generally adheres to her curfew. The probation officer learned that respondent's mother had an indicated case on the state central register from 2008 which resulted from an incident where she beat Anastasios with a broom when he refused to go to school, causing bruises and welts to his body. Anastasios's mother informed the probation officer in the last school year her son "had fair attendance, but poor grades", and that he had been suspended for cutting classes. Respondent's mother secured a transfer to Whitestone Academy High School for Anastasios, and that since that transfer from Cardozo High School his behavior and academic performance have improved. According to the probation report, during respondent's last year as a student at Cardozo High School he had been suspended five times and in the Spring 2009 semester, respondent failed 6 of 7 subjects.
The probation officer's evaluative analysis states that while this case is respondent's only contact with the juvenile justice system, "he had another case that was theft-related, but covered by" the admission made in this case. The probation officer noted that Anastasios K. "tends to associate with the wrong crowd" and that he reportedly suffers from Attention Deficit Hyperactivity Disorder, but he is not being treated with medication. According to the report, over respondent's last three semester as a student at Cardozo High School, a period of 1½ years, Anastasios K. had been absent a total of 32 days, and that he had been suspended on multiple occasions for violations of school rules, insubordination, entering a school building without permission, and intimidating or bullying behavior. The probation officer did not take into account respondent's more recent academic performance, behavior, and attendance at Whitestone Academy where he was enrolled at the time of the dispositional hearing. Concluding that "[t]he respondent lacks discipline, guidance and structure", the probation officer indicated that respondent's "removal from the community is warranted" and recommended that he be placed by the Court.
The PAT report for the respondent was introduced into evidence. A review of that report indicates that Anastasios K. was awarded "asset points" as follows: regular school attendance in the three months preceding his arrest (11 points), and no reported use of drugs or alcohol (5 points). Thus, respondent's "total asset score" was 16 points which is classified as "low assets" and which corresponded to a computer generated "asset level recommendation" of "intensive community program". Had Anastasios K. been a similarly situated female delinquent, his age and gender would have inflated his total asset score to 30 points, which would have placed him in the "medium asset level" with a corresponding recommendation of probation supervision.
The Court also received a report of a psychological evaluation of Anastasios K. by Dr. Yanovsky of the Mental Health Services Clinic. According to the report, Dr. Yanovsky reviewed all relevant documents, she spoke with respondent, his mother, and respondent's counselor at the Whitestone Academy High School. Respondent's mother told the psychologist that this case was her son's second involvement in a forcible theft and that she intentionally did not appear in court when her son appeared so that he would be sent to detention in order to "teach him a lesson". Respondent's mother recounted his failures while at Cardozo High School and her efforts to have im enrolled at Whitestone Academy, where respondent is well-behaved and succeeding academically. The mother also indicated that she had taken Anastasios to a doctor for psychological counseling and that he has been prescribed psychotropic medications by a psychiatrist.
Anastasios K. explained that he is under close supervision of both his mother and the maternal aunt with whom they live. In addition, another aunt and three older first cousins live next door and they also watch over him. The family is very supportive and making efforts to ensure that he stays out of further trouble and that he does well at school. Respondent related that he was influenced by "older peers" while at Cardozo High School which led to cutting classes and school suspensions relating to his behavior. However, since enrolling in Whitestone Academy, he has been doing well, which was confirmed when Dr. Yanovsky spoke to respondent's present school counselor. Dr. Yanovsky diagnosed Anastasios K. with Disruptive Behavior Disorder and ADHD, noting that respondent is "an impulsive youth with a history of hyperactivity", and despite respondent's past problems at school, his involvement with negative peers and stealing money, she found a fairly stable family structure suitable to supervise and guide respondent. Accordingly, "with reservations" and upon the condition that respondent continues to attend Whitestone Academy, and with the recommendation that respondent enroll in counseling, Dr. Yanovsky indicated that "it is worth granting [respondent] the option to be rehabilitated in the community. Therefore, probation is recommended at this point in time. If the respondent's acting out continues, placement should become an alternative option."
Despite the conflicting recommendations made by the Department of Probation and the clinic psychologist, the Court placed respondent on probation for a period of 18 months under the conditions that he complete a period of community service, that he commit no further criminal or delinquent acts, that he attend school regularly, that he enroll in counseling and that he not travel by livery cab unless accompanied by an adult family member.
8. Matter of Lee Ann H. In this case the 13 year old juvenile was charged with Petit Larceny and Criminal Possession of Stolen Property. When she first appeared before the Court, respondent threatened to kill herself if she were remanded to detention and the Court directed that she be evaluated at Elmhurst Hospital. While the hospital determined that Lee Ann did not require in-patient psychiatric hospitalization, it was reported that she has an antagonistic relationship with her mother as well as a recent history of extensive marijuana usage, and the attending psychiatrist diagnosed Lee Ann with Oppositional Defiant Disorder, Cannabis Abuse, and Factitious Disorder ("Malingering"). According to the psychiatrist, Lee Ann "is out of control in her home environment [and] would benefit from a structured environment such as a residential treatment center. The patient started that if she is placed in a group home she will run away."
Respondent subsequently entered an admission to Petit Larceny and the case was adjourned for disposition. The Department of Probation submitted a written report to the Court indicating that Lee Ann H. resides with her mother and one sister in Corona. According to respondent, she and her friend decided to steal a pregnancy test kit from a CVS drug store but they were stopped by store security personnel. According to information provided by respondent and her mother, Lee Ann's 15 year old sister, Leonella, had run away to Florida with an older boyfriend and after a lengthy period, she had returned to the family's home in Queens. Respondent reported that she has no contact with her father and he is not a significant figure in her life. Respondent's mother informed the probation officer that although Lee Ann has an 8:00 P.M. curfew, she frequently stays out until 11:00 P.M. or overnight and she sometimes will disappear for several days at a time. Lee Ann H. denied that she disobeys the curfew set by her mother and she denied staying out all night or that she disappears for days at a time.
Respondent's mother reported that she tries to discipline Lee Ann by removal of privileges or by grounding her but, according to the mother, these attempts at discipline were ineffective "because the respondent did not care" and "respondent would leave the house anyway." Lee Ann H. informed the probation officer that "she has not been close with her mother for a long time, and she does not understand" her. Respondent's mother reported the Lee Ann is frequently truant from school, she fails all of her classes and spends her time "hanging out with her friends" rather than in class. Respondent admitted that she does not attend school regularly, preferring to stay home sleeping or in the park with friends. She also conceded that she has failed all of her classes. The Department of Education reported that Lee Ann H. was absent 39 out of 85 school days during the Spring 2009 semester.
Lee Ann H. told the probation officer that "she smokes weed daily [and] she has been smoking weed for a few months thus far, because her friends provide her with the marijuana." Lee Ann also indicated that during the period she has been in detention, she has not used marijuana and "she is beginning to enjoy not being high." Respondent's mother indicated that she was not aware of Lee Ann's regular use of marijuana, although she indicated that she believed that her daughter uses alcohol regularly. Respondent's mother stated that "the respondent has stolen from her home" and that she stole a DVD player, a camera and other items. She does not know why the respondent is stealing. Respondent's mother informed the probation officer that Lee Ann "has been out of control for about a year" but she wishes for her to remain in her care provide that she is placed under probation supervision and she gets treatment for drug and alcohol abuse.
The probation officer's evaluation reflects that consideration was given to respondent's regular use of marijuana and alcohol, her failure to attend school, her failure to pass her classes, and her inability to follow her mother's directions. The officer further considered the psychiatric diagnosis of the respondent made at Elmhurst Hospital as well as the psychiatrist's observation that Lee Ann H. "is out of control" and that she requires placement in a residential treatment center to address her psychological disorders, general dysfunction and misbehavior. While the probation officer stated that "respondent lacks discipline, guidance and structure, and therefore removal from the community appears indicative", because respondent's mother "wishes to have her released to her" with supervision and intervention by the Department of Probation, it was recommended that the Court place Lee Ann H. on probation with the direction that she be placed in the Enhanced Supervision Program.
The PAT report for Lee Ann H. was introduced into evidence. The report reflects that Lee Ann H. was awarded "asset points" for her current age of 13 (5 points), her gender (14 points), for having no other arrests (6 points), for attending school between 10 and 50 percentage of the time in the three months preceding her arrest (10 points), for a total of 35 "asset points" which were classified as "high assets", which would mechanically result in a recommendation that the delinquent be granted an ACD or a Conditional Discharge. However in this instance, the PAT program recommended that Lee Ann be placed on probation "with services". While the PAT report takes note of the fact that Lee Ann H. rarely respects boundaries, that she has run away from home more than six times over the past year, that she had missed no less than 50 % of her classes at school, that her friends and peers are generally a negative influence, that she has used marijuana and alcohol, and that she suffers from diagnosed mental disorders, these factors had no impact on her total asset score under the PAT program, nor did they affect the PAT generated recommendation of probation with services. The PAT report also reports that Lee Ann H.'s mother has made some attempts to supervise her and to set boundaries, which is directly contradicted through the interpersonal contacts between the probation officer and the clinic psychologist, although this had no effect upon the number of asset points awarded by the computer.
A report was provided by the Mental Health Services Clinic which indicated that both Lee Ann H. and her mother had been interviewed by Linda Intranuovo, Ph.D. in connection with the evaluation process. Dr. Intranuovo reported that the Administration for Children's Services (ACS) had been involved with respondent's family for the past two years due to allegations that Lee Ann H. and her older sister were not attending school as well as an allegation that the mother had beaten one of the girls. The ACS caseworker informed Dr. Intranuovo that Lee Ann H. is a "chronic runaway" who "ran away approximately 32 times in the past year", that Lee Ann H. abuses marijuana, but there is no indication that she is involved in prostitution. Notably, it was reported that Leonella, the older sister, "is more out of control" than Lee Ann H., which raised concerns about the mother's parenting abilities with the psychologist The caseworker also informed Dr. Intranuovo that "[n]either Lee Ann nor Leonella complied with counseling which was initiated 1-2 years ago [and] recommended that Lee Ann be placed, as she is in need of more structure."
Dr. Intranuovo reported that respondent's mother was aware of respondent's misbehavior at school, her regular episodes of running away and her usage of alcohol and marijuana. However, according to the report, the mother no longer takes steps to control Lee Ann H., and she expressed no intention to undertake such efforts in the future. During her interview with Dr. Intranuovo, Lee Ann H. minimized her misbehavior, telling the psychologist that she had run away on only two occasions and claiming that her mother had kicked her out of the house because she had lost a camera (which the mother had reported as stolen by Lee Ann). According to Lee Ann H. she stayed with her grandmother and with her 19 year old boyfriend, who supplies her with marijuana and with whom Lee Ann H. is sexually active. According to Dr. Intranuovo, Lee Ann H.'s truancy from school began in the 7th grade and the truancy had increased in the 8th grade because Lee Ann H. did not like the school work or the teachers. The psychologist noted that when not at school, Lee Ann H. would typically be home sleeping, and while the mother was aware of Lee Ann's failure to attend school, she had given up trying to compel the child to go to school.
Lee Ann H. told the psychologist that she had superficially self-mutilated her arm on one occasion in October 2009 when her mother had locked her out of the house, and she denied her mother's report that she attempted to hang herself with a bra inside of the Family Court building during the pendency of the case. In addition, Lee Ann H. had "assaulted" a court officer while being escorted from the court room to juvenile detention, explaining that she had a reaction when the court officer attempted to handcuff her. Lee Ann H. also told Dr. Intranuovo that her mother "thinks I am a prostitute".
Dr. Intranuovo reported that Lee Ann H.'s IQ of 112 places her above the average range of intellectual ability, and she diagnosed Lee Ann H. with Disruptive Behavior Disorder (not otherwise specified), Cannabis Abuse (provisional), with inadequate parental supervision, separation from siblings, father and step-father, as contributing factors. Dr. Intranuovo found that Lee Ann H. "presents as a pleasant and intelligent girl whose disregard for rules and authority surfaced approximately two years ago." While ACS has been involved in providing services to the family for two years, the efforts of ACS "have been ineffective in modifying the negative behaviors of Lee Ann H. and her sister. [The mother] is grossly ineffective in managing Lee Ann H. and her sister and does not [seem] to be even mildly interested in learning better parenting strategies."
While Dr. Intarnuovo's report noted that Lee Ann H. was not engaged in violent or predatory behavior, "[p]lacement is clearly indicated however, as Lee Ann's behavior seriously compromises her own safety, which danger is compounded by the inability and disinterest of her mother to attempt to parent her properly." Accordingly, the psychologist recommended that Lee Ann be placed in "a moderately to highly structured setting that is behaviorally oriented and can provide consistent limits and consequences for her behavior as well as appropriate academic services."
In what was apparently a response to the detailed findings and recommendation by Dr. Intranuovo, as well as the earlier report from the psychiatrist at Elmhurst Hospital, the Department of Probation apparently began to backtrack. The Court received a written update of the probation report from the probation officer who had apparently been in contact with the ACS caseworker who had been providing services to the family. According to the update, the ACS caseworker confirmed that counseling had been attempted with the family but that Lee Ann H. and her sister refused to cooperate. Additionally, the ACS worker confirmed that Lee Ann H. rarely attends school, that she uses drugs, and that ACS recommended that Lee Ann H. be placed away from home in a residential treatment setting.
Thereafter, the Court then received a written communication from probation indicating that the Department 's "initial recommendation which required a[n] override was placement", as Lee Ann H. had a total asset score of 35 which is in the "high asset" level. While it appears that the PAT report indicates a recommendation of "intensive community program/OCFS placement", the new recommendation was for ESP probation. Given that Lee Ann H. has a total asset score of 35 (high assets), if there was an override from the PAT generated recommendation, it was a downward departure because the computer generated recommendation for a total asset score of 35 points was irrational given respondent's overall dysfunction.
Lee Ann's total asset score of 35 points generated by the computer program corresponded to a recommendation of an ACD or a Conditional Discharge. Even considering the override of the computer generated recommendation, any recommendation short of residential placement was clearly inappropriate for this demonstrably dysfunctional juvenile. The irrationality of the PAT computer program is further demonstrated by the fact that even had Lee Ann H. not been awarded 14 points based upon her gender, the total asset score would have been 21 points, which is in the "medium asset level" and which would generally correspond to a recommendation of probation supervision, which also would have been inappropriate for Lee Ann H.
II
The Family Court was established as a court of statewide jurisdiction in 1962 (NY Const, art VI, § 35; see, Sobie, Practice Commentaries, McKinney's Cons Law of NY, Book 29A, Family Court Act § 111, at 6-8 [2008]), and the Court is vested with exclusive original jurisdiction over juvenile delinquency proceedings (NY Const, art VI, § 13; Fam. Ct. Act §§ 112; 113; Matter of Raymond G., 93 NY2d 531, 534). "When the Family Court Act was first adopted in 1962, there was no article dedicated exclusively to juvenile delinquency proceedings ( see L 1962, chs 686, 700). Article 7 encompassed both juvenile delinquency matters and persons in need of supervision (PINS)" ( Matter of Robert J. , 2 NY3d 339 , 345). In 1982 the Family Court Act was amended and the provisions relating to juvenile delinquency proceedings were incorporated into a separate article of the Family Court Act (L 1982, ch 920; see, id.).
Prior to the enactment of modern due process-based juvenile delinquency statutes, criminal conduct by children was primarily addressed through what were essentially non-adversarial proceedings in which children were not considered criminals. Because such proceedings were non-criminal in nature and brought on behalf of the child by the state as "parens patriae", the traditional procedural safeguards applicable to criminal prosecutions were deemed inapplicable ( In re Urbasek, 38 Ill.2d 535, 538-539, 232 NE2d 716, 717-718 [Sup Ct 1967]; In re C.S., 115 Ohio St.3d 267, 274-275; 874 NE2d 1177, 1184-1185 [Sup Ct 2007]). After half a century of such informal proceedings ( In re Urbasek at 538-539), and a recognition "that the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized" ( McKeiver v. Pennsylvania, 403 US 528, 543-544), a series of decisions by the United States Supreme Court, most notably the decision In re Gault ( 387 US 1), "inaugurated sweeping constitutional reform[s] of the rights of juveniles in this country" ( In re Dennis M., 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 6, 450 P.2d 296, 301 [Sup Ct 1969]; see also, Matter of Benjamin L., 92 NY2d 660, 664-665). At or about the time of these Supreme Court decisions, the States proceeded to enact modern juvenile delinquency statutes which incorporated many of the constitutional protections applicable to adult criminal prosecutions ( see, McKeiver v. Pennsylvania at 532-534; Breed v. Jones, 421 U.S. 519, 528-529; In re C.S., 115 Ohio St.3d at 275-277, 874 NE2d at 1185-1187; In re Hezzie R., 219 Wisc.2d 848, 891-892 [Sup Ct 1998], cert den sub nom Ryan D.L. v. Wisconsin, 525 U.S. 1150; State v. Rudy B., 147 N.M. 45, 48, 216 P.2d 810, 813 [Ct App 2009], cert granted 147 N.M. 423, 224 P.3d 650 [Sup Ct 2009]).
The absence of procedural protections for accused juvenile delinquents under the parens patriae approach drew occasionally pointed criticism ( e.g., People v. Lewis, 260 NY 171, 179 [1932] [Crane, J., dissenting], app dism and cert den 289 U.S. 709 [1933]; In re Holmes, 379 Pa. 599, 603, 109 A.2d 523, 525 [Sup Ct 1954] [Musmanno, J., dissenting], cert den 348 U.S. 973 [1955]).
A
The current New York statute creates a binary quasi-criminal hearing process for the adjudication of juvenile delinquency charges ( see, Matter of Jose R., 83 NY2d 388, 394). The first hearing is the fact-finding hearing or trial at which the prosecutor must establish by proof beyond a reasonable doubt that: (i) the accused (designated as the respondent) is a person between the ages of 7 and 16; and (ii) that the respondent committed an act which, were he or she an adult, would constitute a felony or a misdemeanor defined by the Penal Law or by another statute or code (Fam. Ct. Act §§ 301.2; 342.1; 343.2). Next, "[i]f the allegations of a petition or specific counts of a petition concerning the commission of a crime or crimes are established, the court shall enter [a fact-finding] order and schedule a dispositional hearing pursuant to section 350.1" (Fam. Ct. Act § 345.1). In connection with the scheduling of the dispositional hearing, the court must order "a probation investigation" and it "may order a diagnostic assessment" (Fam. Ct. Act § 351.1).
The dispositional hearing must be conducted in accordance with the procedures set forth in Family Court Act § 350.4, and "[o]nly evidence that is material and relevant" is admissible at the hearing (Fam. Ct. Act § 350.3). At the conclusion of the dispositional hearing the court is required to make specific preliminary findings. If the court concludes that the respondent requires supervision, treatment or confinement, "the court shall enter a finding that the respondent is a juvenile delinquent and order an appropriate disposition pursuant to section 352.2" (Fam. Ct. Act § 352.1). Alternatively, although the court has previously determined that the juvenile committed at least one crime, if "the court determines that the respondent does not require supervision, treatment or confinement, the court shall dismiss the petition" (Fam. Ct. Act § 352.1; see, e.g., Matter of Jens P.. 159 AD2d 707, 708; Matter of Kyung C., 169 AD2d 721; Matter of Ejiro A., 268 AD2d 428, 428-429). Should the Court find that the juvenile is delinquent, "Family Court Act § 352.2 authorizes five dispositions of a youth who has been adjudicated a juvenile delinquent: conditional discharge, probation, placement with OCFS, placement in a mental hygiene facility and, in the case of a juvenile who has committed a designated felony, restrictive placement pursuant to Family Court Act § 353.4" ( Matter of Robert J., at 343).
B
"The overriding intent of the juvenile delinquency article is to empower Family Court to intervene and positively impact the lives of troubled young people while protecting the public" ( Robert J. at 346; see also, Matter of Jose R. at 394-395; Matter of Benjamin L. at 670; Matter of Jermaine G., 38 AD3d 105, 111). Consistent with the goal of providing delinquent children with treatment designed to achieve rehabilitation ( see, Matter of Quinton A., 49 NY2d 328, 334-335; Matter of Carmelo E., 57 NY2d 431, 435; Green v. Montgomery, 95 NY2d 693, 697-698), the statute contains no preference for any particular dispositional alternative and it directs that "[i]n determining an appropriate order the court shall consider the needs and best interests of the respondent as well as the need for protection of the community" (Fam. Ct. Act § 352.2 [a]). Moreover, unless the juvenile has committed a designated felony act, one of the more serious and frequently violent acts of juvenile delinquency, which may subject the juvenile to a longer and more secure type of placement (Fam. Ct. Act § 301.2; Matter of Raymond G. at 537), the court is required to "order the least restrictive available alternative . . . which is consistent with the needs and best interests of the respondent and the need for protection of the community" (Fam. Ct. Act § 352.2 [a]). To that end, "[t]he two interests at stake — the needs of the child and the needs of the community — are presumptively entitled to equal weight" ( Matter of Todd B., 190 AD2d 1035, 1036; see also, Matter of Timothy C. , 31 AD3d 1222 , 1223; Matter of Pedro A., 34 AD3d 461, 461-462; Matter of Aaron P. , 72 AD3d 826 , 827; Matter of Horan A., 74 AD3d 1192, 1194).
C
In determining the most appropriate dispositional alternative in a juvenile delinquency case the Family Court has access to the services of the Department of Probation and, if appropriate, the services of the Family Court Mental Health Services Clinic (Fam. Ct. Act §§ 251; 252). The participation of these agencies at the dispositional phase of a juvenile delinquency proceeding is provided for by statute (Fam. Ct. Act § 351.1, [2]; Executive Law §§ 255; 256 [2]), and judges give careful consideration to the investigatory findings and dispositional recommendations made by both the Department of Probation and the clinical staff of the Family Court Mental Health Services ( see, Matter of Jason L., 246 AD2d 444; Matter of Raoul E., 266 AD2d 47, 48; Matter of Charles B., 288 AD2d 152; Matter of Gerald W. , 12 AD3d 522 , 523; Matter of Rosario S., 18 AD3d 563, 564; Matter of Julissa R. , 30 AD3d 526 ; Matter of Oneil D., 35 AD3d 602; Matter of Michael E. , 48 AD3d 810 , 811; Matter of Thomas D., 50 AD3d 897; Matter of Tegure J. , 51 AD3d 1026 , 1027; Matter of Eunique B., 73 AD3d 764).
Unless waived by the parties, the Department of Probation must conduct an investigation and prepare a written report prior to entry of an order of disposition by the Family Court.(Fam. Ct. Act § 351.1, [2]). The Department of Probation written report (commonly referred to as an "I R") "is a document prepared to assist a Family Court Judge in determining the appropriate disposition after adjudication of juvenile delinquency charges" ( Matter of Alonzo M. v. Department of Probation, 72 NY2d 662, 664). The Family Court Act directs that "the probation investigation shall include, but not be limited to, the history of the juvenile including previous conduct, the family situation, any previous psychological and psychiatric reports, school adjustment, previous social assistance provided by voluntary or public agencies and the response of the juvenile to such assistance" (Fam. Ct. Act § 351.1; see, Matter of Mi-Kell V., 226 AD2d 810, 811). In addition to the requirements of the Family Court Act, specific regulations have been promulgated by the state Director of Probation and Correctional Alternatives to provide specific guidelines to local Departments of Probation concerning the scope of court-ordered investigations in juvenile delinquency proceedings, how the investigation is to be conducted ( 9 NYCRR § 350.6), and the preparation and contents of the written report ( 9 NYCRR § 350.7).
The state probation regulations ( 9 NYCRR § 350.7) specify the "evaluative analysis" which must be undertaken by the Department of Probation in connection with its dispositional recommendation. That section of the regulations reads, in pertinent part, as follows:
(4) Evaluative analysis. The evaluative analysis is not a restatement of facts but a synthesis of the significant information reported previously in the document. No new information is to be introduced into this section. The evaluative analysis section shall contain a brief opening statement of the matter before the court and any specific legal considerations for disposition/sentencing. This section of the report shall provide a succinct analysis, relevant to decisionmaking, of the probation officer's assessment and conclusions from the information gathered throughout the interview and the investigation process. The evaluative analysis shall include the following elements:
(i)analysis of legal history, including present offense/act;
(ii)impact of the present offense/act on the victim(s) and community;
(iii)analysis of past and present behavior patterns as they contribute to current legal situation;
(iv)analysis of current social circumstances and triggers as they contribute to current legal situation;
(v)analysis of risk factors and potential for future recidivism;
(vi)analysis of criminogenic need areas;
(vii)availability of community, family, and individual protective factors and treatment resources to address the criminogenic risk and needs; and
(viii)assessment of potential for lawful behavior.
(5) Recommendation. This section of the report shall contain a statement concerning the type of court disposition/sentence recommended, which shall be consistent with law,
and shall flow logically from the evaluative analysis.
(i)Special conditions: when a period of probation supervision, interim probation supervision, or conditional discharge is recommended, any recommended or required special conditions shall flow from the evaluative analysis and, in accordance with law, support reparation, public safety and offender accountability. Special conditions shall be specific to the offense/act and the offender, and shall focus on:
• criminogenic risk reduction;
• offender compliance with State and Federal laws;
• measures to ameliorate the conduct which gave rise to the offense/petition, or to prevent incarceration or placement;
• addressing social, educational, vocational and treatment needs;
• incorporating special offender requirements, where applicable, such as sex offender registry, ignition interlock, and electronic monitoring;
III
There have been recent calls for reform of the state's juvenile justice system coming from within the system itself, other governmental entities such as the United States Department of Justice, as well as from outside observers and "experts". Those advocating for reform tend to focus on several factors including: (i) a negative evaluation of the functioning of the Office of Children and Family Services (OCFS) by the Civil Rights Division of the United States Department of Justice ( see, Findings of Civil Rights Division, August 14, 2009 letter of Acting Assistant Attorney General Loretta King to Governor David A. Paterson); (ii) the concession by responsible public officials that OCFS is presently unable to carry out the responsibilities delegated it by statute ( see, Executive Law § 501; Report of Governor's Task Force on Transforming Juvenile Justice ("Task Force Report"), at 8 [December 2009]; Nicholas Confessore, Official in Charge of State's Youth Prisons Welcomes a Critical Report, New York Times, December 15, 2009, at A36, col.2); Julie Bosman, For Juveniles in Family Court, Judges Seek Safer Alternatives to Prison, New York Times, March 8, 2010, at A16, col. 1); (iii) the asserted high cost associated with placing a juvenile delinquent in OCFS custody; and (iv) the perception that Family Court Judges place juvenile delinquents in OCFS custody for the commission of "minor infractions" ( see, Editorial, New York Times, January 6, 2010 at A22 [53% of juveniles in OCFS custody "placed there for minor infractions"]; Jennifer Gonnerman, The Lost Boys of Tryon, New York Magazine, January 24, 2010).
According to the report's "acknowledgments", the Governor's Task Force on Transforming Juvenile Justice "was staffed by the Vera Institute of Justice in New York City. Vera's Center on Youth Justice provided an institutional base for the Task Force, as well as vital data analysis and logistical support." The Vera Institute of Justice, Inc., is a "not-for-profit" New York State corporation ( see, New York State Department of State corporations database at www.dos.state.ny.us (current as of November 6, 2010 and last accessed November 8, 2010), which describes itself as an organization engaged in improving the administration of justice and "an independent partner of government" ( see, Letter of Michael P. Jacobson, president of the Vera Institute of Justice contained in the Vera brochure [2009] at www.vera.org [last accessed November 8, 2010]). According to Vera's web site, the institute establishes demonstration projects funded by a governmental entity which focus upon a specific problem or area. At the conclusion of the demonstration period, Vera seeks to "spin off' these demonstration projects into "legally independent organization[s]"and that "[s]ince its founding, Vera has created 14 nonprofit organizations with combined revenues of more than $200M" ( id.). One Vera Institute spin off, the "Esperanza program", was the subject of an audit conducted by former New York City Controller William C. Thompson, Jr. ( see, Audit Report on the Vera Institute of Justice Contract with the Department of Probation to Operate the Esperanza Program, Report No. ME07-133A [June 26, 2008]). According to the audit report, the Esperanza Program was awarded a City contract for Fiscal Year 2007 in the amount of $3,199,263 and in that fiscal year, Esperanza provided direct services to 160 youths, which is roughly equal to a per capita cost of $20,000 per child. For the period of July 1, 2008 through June 30, 2011, the City awarded Esperanza a contract valued at $8,877.789 to operate an "alternatives to placement" program. The contract was amended on or about July 9, 2010 and it now provides for the City to pay Esperanza the sum of $11,837,052 for operation of the "alternatives to placement" program. It should also be noted that a City agency, the Administration for Children's Services ("ACS"), also operates an "alternatives to placement" program known as the Juvenile Justice Initiative ("JJI"). The costs of that program are presumably part of the total ACS agency budget, although JJI has payment agreements with voluntary authorized social services agencies to provide direct services to youth whom the Family Courts direct to participate in JJI. It has been noted that JJI "has not yet saved the city any money" and that the cost of JJI is approximately "$11 million" per fiscal year" (Kendra Hurley, Private Institutions, Public Costs, Child Welfare Watch, A Need for Correction, Reforming New York's Juvenile Justice System, vol. 18, Fall 2009, at 11). The Vera Institute is a registered lobbyist with both state and city governments ( see, web sites of New York Attorney General and City of New York [www.sunlightny.com and www.nyc.gov/lobbyistsearch] both accessed on November 8, 2010), and public records reflect that Vera has been awarded at least 26 contracts by state entities between April 1, 2004 and February 26, 2010, the values of which range from $49,000 up to $800,000. Additionally, Vera has been awarded 20 contracts by New York City government between July 21, 2005 and June 30, 2010, the values of which range from $36,832 to $7.99 million, including at least 11 contracts with values between $1.25 million and $7.99 million ( see, www.sunlightny.com; and www.comptroller.nyc.gov [Comptroller's Clear View contract reporting system, last accessed July 19, 2010).
The Governor's Task Force states that New York "spends an average of $210,000 per year to hold a young person in an institutional placement facility" (Task Force Report at 14). According to the report, $210,000 represents an average per child or per capita cost based upon the expenses of operating OCFS facilities in 2009. The asserted per capita cost of $210,000 has been reported widely but usually without any analysis of how that figure was arrived at ( e.g., INSIDE OUT: Youth Experience Inside New York's Juvenile Placement System, Citizen's Committee for Children of New York, Inc., at 4 [December 2009] [average annual cost of placement in OCFS facilities is $200,000 per year, per child]; Kendra Hurley, Private Institutions, Public Costs, Child Welfare Watch, A Need for Correction, Reforming New York's Juvenile Justice System, vol. 18, Fall 2009, at 10 [OCFS facilities cost between $140,000 and $200,000 per person per year]; Elizabeth Glazer, " New York Can Do Better by Juvenile Offenders", Wall Street Journal, December 19, 2009, at A11, col. 1 [per capita cost to place one child in OCFS custody is $210,000 per year]).
According to Ms. Gonnerman, "[o]f the boys now at Tryon, almost all are locked up for misdemeanors or low-level felonies. Most committed property offenses, like robbery (sic) or petty larceny. One sixth are imprisoned for assault or attempted assault. And roughly a third are here because they violated probation, either by getting re-arrested or disobeying rules, like skipping school or staying out past curfew" ( id.). On the other hand, Kenneth Brynien, president of the New York Public Employees Federation, which represents OCFS employees, and who was also a member of the Governor's task force, observed that "[t]he youth are there because they have committed crimes . . . [m]any of them have pled down from violent crimes" (Confessore, supra, New York Times, at A36, col. 2), and in this Court's observation, the overwhelming majority of juvenile delinquents who are eventually placed in the custody of OCFS were initially granted an ACD or placed on probation and were not placed until they had committed additional crimes or multiple violations of the conditions of behavior imposed by the Court
Whether any or all of the concerns relating to the ability of OCFS to address the needs of juvenile delinquents who require institutional placement are valid, and whether there should be a shift towards non-placement community based alternatives in juvenile delinquency cases are public policy questions, and "the place for the expression of the public policy of New York is in the Legislature, not the courts" ( Martinez v. County of Monroe , 50 AD3d 189 , 193, lv dismissed 10 NY3d 856; see, Hernandez v. Robles , 7 NY3d 338 , 366). Nevertheless, because these public policy concerns have impacted upon the current functioning of the juvenile justice system, including executive action undertaken without legislative approval, and because some parties calling for reform appear to have a vested interest in the continuation of specific programs, these matter of public policy must at the very least be acknowledged.
Bills were introduced in the current session of the Legislature which would amend Family Court Act § 352.2 to require judges to make specific findings, including a finding that no appropriate alternative to placement program is available, prior to entering an order placing a respondent in the custody of OCFS (S6790C [Senator Montgomery]; A10449-C [Assemblyman Lentol]). The Senate passed its version of the bill by a vote of 32 to 29 on June 22, 2010, and the Assembly bill has been before the Judiciary Committee since March 26, 2010.
One reform which has been enacted seeks to place juvenile delinquents in facilities operated by community-based authorized agencies. However, as noted by one State Assembly subcommittee, "[t]he shift to less secure, privately operated community-based programs raises . . . safety concerns. For example, in June 2009 a community residence worker, Renee Greco, was murdered by a youth placed by OCFS in a private residential center in Lockport, New York, which has since been closed. In January 2009 a police officer, Anthony DiPonzo, was shot in the head by a youth who went AWOL from a private residential community placement in Rochester, New York. Additionally, it is estimated that up to one-third of youth placed in privately run residential placement programs by OCFS or Family Court are later sent to an OCFS run residential facility because they are either too dangerous for the community facility to handle or they need services which the community programs cannot provide" ( Employee Safety in the New York Juvenile Justice System, Report of the Assembly Subcommittee on Workplace Safety at 2-3 [2010]). The subcommittee report further notes that the current OCFS Commissioner plans include transforming the agency from a correctional-based model to one "that views juvenile delinquents as victims of trauma in need of therapy, education, and rehabilitation" ( id. at 5).
A
In 2003, the New York City Department of Probation, whose Commissioner is a mayoral appointee, adopted a plan known as "Project Zero" which is a so-called juvenile justice reform initiative to reduce the use of preventive detention and placement. According to one source, "Probation Commissioner Martin Horn started the program in 2003, with zero' standing for the goal of sending no kids to juvenile correctional facilities outside the city. Instead, they would return home to live with their families, attend school as usual, and participate in intensive therapy sessions aimed at helping them get on the right path from inside their own neighborhoods" (Betsy Morris, Close-to-Home Treatment for Youths Gains Notice", City Limits, July 7, 2008, available at www.citylimits.org/news/article_print.cfm?article_id=3587). The article recites Department of Probation statistics indicating a decrease in the number of adjudicated juvenile delinquents who were placed in OCFS custody between 2003 and 2007, and the article states that "the DOP took advantage of new technologies that made better data analysis possible". The primary "technology" is stated to be "a tool that is used day in and day out to help make decisions about where kids get placed, how kids get placed . . . the program consistently evaluates its own progress and makes adjustments accordingly, based on data. It keeps people from making really willy-nilly decisions" ( id.). Additionally, Project Zero is lauded for saving the City money as it pays for part of the cost of OCFS placements.
"The concept for Project Zero originated with Probation Commissioner Martin Horn and Christopher Stone, the former director of the Vera Institute" ( Probation Today, vol. VI, No. 1, at 1 [August 2007], available on NYC Department of Probation web site).
In his own comments, then Commissioner Horn observed that "the most significant factor in determining whether the Judge sent a child to placement was the Probation recommendation; and probation officers were idiosyncratic in their decision-making. We created a research-validated instrument to guide sentencing recommendations, achieved consistency and the results were immediate and dramatic. From 2004 to 2008, placement recommendations declined from 40% to 23%-placement admissions declined 32% from 1257 to 853. And the results have been as good as or better for the youth who have remained in their homes, schools, and communities. Over 65% of the children placed in Esperanza successfully complete probation and 74% have remained out of placement within 9 months of disposition. Only 16% of the children placed with Esperanza were rearrested in FY 2007" (Martin F. Horn, The Use of Research in Juvenile Justice Reform, Address at Juvenile Justice Research Symposium, John Jay College of Criminal Justice, June 5, 2009 [copy in court file]).
The so-called research validated instrument is the Probation Assessment Tool utilized in the cases discussed herein. What is apparent from a review of the use of the PAT in these sampled cases as well as others, is that the Vera Institute, in collaboration with the Department of Probation, created the PAT as a diagnostic mechanism to ensure that those juvenile delinquents subjectively believed to be least likely to commit further criminal conduct, that is females between 12 and 15 years old, would be recommended for the least restrictive types of possible outcomes such as adjournment in contemplation of dismissal or a Conditional Discharge, neither of which typically involves the commitment of any City resources or the expenditure of any public funds. For female respondents burdened with more difficult circumstances, the recommendation might be probation supervision, although similarly situated male respondents would initially be recommended for probation supervision, while those with more significant problems reluctantly being recommended for placement.
The primary goal of the city government is to reduce the number of adjudicated juvenile delinquents who are placed away from their home. Whether based upon fiscal considerations or upon sociological concerns, neither of which are within the province of this Court to weigh, the PAT computer program has been developed as one mechanism to achieve the goal. While presented as a diagnostic tool to ensure "fairer outcomes" for delinquents, the PAT program achieves its purpose through a seemingly bizarre, sterile, and largely impersonal system of "asset points", "asset scores" and "asset classifications" which supposedly correlate a numerical figure to the presumptively correct order of disposition. In practice however, the system contains a built in gender bias in favor of female delinquents and against similarly situated male delinquents. The system invariably awards 14 "asset points" to female delinquents based solely upon their gender and, since 33 total asset points are needed to qualify a delinquent for an ACD or a Conditional Discharge recommendation under the PAT computer program, the PAT ensures that all but the most violent or maladjusted female delinquents will be recommended for a disposition which does not involve the expenditure of fiscal resources or the resources of the Department of Probation.
B
Both the federal and state constitutions guarantee equal protection to all persons ( U.S. Const., 14th Amend.; NY Const, art I, § 11), although the New York Equal Protection Clause "is no broader in coverage than the Federal provision" ( Hernandez v. Robles at 362; see also, Samuels v. Department of Health, 29 AD3d 9, 15-16, aff'd 7 NY3d 338). While neither constitutional provision absolutely prohibits the State from treating distinct classes of people differently ( Reed v. Reed, 404 U.S. 71, 75; Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271), any classification "must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike"( Reed at 76 [citation omitted]; see, Lehr v. Robertson, 463 U.S. 248, 265; Matter of Patricia A., 31 NY2d 83, 88).
The Supreme Court has held that "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny" ( Frontiero v. Richardson, 411 U.S. 677, 682; see, Reed at 75; Craig v. Boren, 429 U.S. 190, 197; Mississippi University for Women v. Hogan, 458 U.S. 718, 723). This is because gender, "like race and national origin, is an immutable characteristic determined solely by the accident of birth" ( Frontiero at 686), and a person's gender "frequently bears no relation[ship] to ability to perform or contribute to society" ( id.).
"Most laws classify, and many affect certain groups unevenly" ( Feeney at 271-272). "In assessing an equal protection challenge, a court is called upon only to measure the basic validity of the legislative classification" ( id. at 272). In undertaking that analysis, courts generally afford duly enacted statutes a presumption of validity as "Legislatures have wide discretion in passing laws that have the inevitable effect of treating some people differently from others, and legislative classifications are valid unless they bear no rational relationship to a permissible state objective" ( Parham at 351). "Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create classes based upon . . . immutable human attributes" ( id.).
Because classifications based upon gender are frequently based upon dated and "overbroad generalizations" ( Schlesinger v. Ballard, 419 U.S. 498, 507; see, Parham v. Hughes, 441 U.S. 347, 354), and "[c]lassifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination" ( Feeney at 273), courts have applied an intermediate level of scrutiny under which the government must demonstrate that the gender-based classification is substantially related to the achievement of an important governmental objective ( Schlesinger at 510; Craig at 197; Califano v. Webster, 430 U.S. 313, 316-317; Orr v. Orr, 440 U.S. 268, 279; Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 60-61; People v. Whidden, 51 NY2d 457, 460, app dism 454 U.S. 803; People v. Liberta, 64 NY2d 152,168[1984], cert den 471 U.S. 1020[1985]; People v. Santorelli, 80 NY2d 875, 876). In other words, there must be a showing that there is an "exceedingly persuasive justification" for the gender distinction ( Kirchberg v. Feenstra, 450 U.S. 455, 461; J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136-137; Hogan at 724; United States v. Virginia, 518 U.S. 515, 531).
Here the Court is not construing the words of a statute or the effect of an enactment of the Legislature. To date, the Legislature has not amended the relevant Family Court Act provisions relating to the permissible orders of disposition in a juvenile delinquency proceeding, nor has there been any amendment to the statute which circumscribes when the Family Court may place an adjudicated delinquent in OCFS custody. Similarly, the Legislature has not amended the Executive Law provisions relating to the operation of the State Division of Probation and Correctional Alternatives which directs and regulates the functions of local probation departments. The Court is faced with what is basically an unwritten policy choice unilaterally made by a municipal government without any input by the public through its elected legislators. That policy determination effectively alters the methodology by which the Department of Probation conducts court mandated investigations in juvenile delinquency proceedings and makes dispositional recommendations to the court. Plainly, the Court is under no obligation to defer to the policy preferences of the City and those policy preferences are entitled to no presumption of validity.
While the City may wish to see certain reform made in the juvenile justice system of this State for a number of valid reasons, it is clear that the State has preempted the field of juvenile justice and that amendments to the controlling statutes must be enacted by the State Legislature ( see, People v. DeJesus, 54 NY2d 465, 469; Consolidated Edison of New York, Inc. v. Town of Red Hook, 60 NY2d 99, 105; DJL Restaurant Corp. v. City of New York, 96 NY2d 91, 94; Anonymous v. City of Rochester , 13 NY3d 35 , 52 [Graffeo, J., concurring]). Similarly, Family Court Judges are not free to rewrite statutes as they see fit, and they are obligated to apply the dispositional provisions of the juvenile delinquency statute as they are currently written.
If there are to be modifications of the criteria which courts must apply in determining the most appropriate order of disposition in juvenile delinquency cases, those changes must emanate from legislative enactment, not the individual preferences of judges or the preferences of litigants or interested non-parties. An attempt to effect modifications of the relevant statutes under the guise of offering dispositional alternatives designed to reduce or eliminate the possibility that the court might utilize one of the statutorily authorized dispositions in a given case or a class of cases, is impermissible as it undermines the existing statutory scheme.
The aspiration that courts should reduce the reliance upon institutional placements is not necessarily universal ( e.g., Kristin Henning, What's Wrong With Victims' Rights in Juvenile Court?: Retributive Versus Rehabilitative Systems of Justice, 97 Cal. L. Rev. 1107 [2009]). Professor Henning observes that some juvenile delinquency statutes "now require juvenile courts to balance the rehabilitative needs of the child with other competing interests such as account-ability to the victim and restoration of communities impacted by crime" ( id. at 1108).
Juvenile courts faced with determining the most appropriate dispositional alternative for a juvenile delinquent are indeed deciding a weighty matter. The statute prescribes the factors which the court must consider before entering an order, and fiscal impact upon the state or one of its political subdivisions is not one of the specified criteria to be considered by the court. Indeed, the court is obligated to exercise its considered judgment as to the appropriate order of disposition, even where the public officials responsible for carrying out that order will decline to do so based upon fiscal concerns ( see, e.g., In re Rodney H., 223 Ill.2d 510, 861 NE2d 623 [Sup Ct 2006] [fiscal concerns prevented the implementation of court's valid placement order for juvenile delinquent]).
C
The Probation Assessment Tool created by the Vera Institute of Justice and the New York City Department of Probation, which is currently being utilized by the Department in formulating dispositional recommendations in juvenile delinquency proceedings, impermissibly discriminates against juvenile males by awarding a preference to delinquent females in the form of asset points based solely on the immutable fact of their gender. The records of these proceedings contain no evidence as to the scientific or sociological validity of the gender-based preference, and the Court cannot simply assume that the data underlying the PAT program justifies its disparate impact.
While it may be argued that male juvenile delinquents are more likely to commit further crimes if released to the community or if released to the community without probation supervision, nothing in the juvenile delinquency statute permits the Court to act upon that proposition, even if statistically correct. Similarly, the Court cannot simply assume that female delinquents are less likely to commit further crimes if released to the community and that female delinquents do not usually require probation supervision, let alone placement out of the community. Such gender-based presumptions cannot replace the individualized assessment of the needs of each juvenile along with an assessment of whether the community requires protection from a child. "[T]he test for determining the validity of a gender-based classification is straightforward, [and] it must be applied free of fixed notions concerning the roles and abilities of males and females" ( Hogan at 724-725). Here, the Department of Probation has adopted a gender-based classification relating to its function to investigate and report to the Family Court, and its duty to make a recommendation as to the appropriate order of disposition in juvenile delinquency cases. Where as here, the government applies a gender-based approach, it bears the burden of demonstrating that there is an exceedingly persuasive basis for the gender distinction. "The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females" ( United States v. Virginia at 533; see also, Hogan at 725).
Here there has been no showing that the PAT is based upon valid data, and it appears that the PAT program is essentially structured upon the assumption-which may be valid-that a certain population of juvenile delinquents pose less of a threat to the safety of the community than others. Nevertheless, the calculation of a "total asset score" by a computer does not relieve the Family Court from making an individualized assessment as to the needs and best interests of the juvenile and the need to protect the community. In fashioning an appropriate order of disposition, the Family Court may consider the recommendations made by the Department of Probation or the recommendations of a psychologist who has evaluated the respondent. The Court, however, is never bound to follow any particular recommendation ( Matter of Erika R. , 55 AD3d 740 ; Matter of Jasen P.M., 289 AD2d 1033; Matter of Dennis ZZ., 159 AD3d 880). Indeed, had the Court simply followed the recommendations of the probation department in these cases, the result would have been unwarranted harsher treatment of some male delinquents and unwise and unjustified lenient treatment for some of the female delinquents. In either event, the outcome would have been absurd and in some cases reckless.
In the case of Geraldine A. who was found to have participated in an unprovoked group assault upon two victims, the initial recommendation was that she be granted an ACD. However, it was subsequently discovered that Geraldine A. was failing most of her classes at school, that she occasionally missed school and was in need of supervision, and the Court placed her under probation supervision. In that case, had Geraldine A. not been awarded 14 points by the PAT computer program for gender, her total asset score would have been too low to result in an ACD recommendation. In the case of Tiffany H. the child was found to have brought a large kitchen knife to school. While the initial recommendation was for an ACD based upon her PAT total asset score of 36, it was later learned that Tiffany H. regularly cut classes, that she had multiple suspensions from school, and that she was not passing her classes. The PAT score was bolstered by the 14 points Tiffany H. received for gender and the 11 points she received for good school attendance, although her school attendance was obviously very poor. Tiffany H. was thus placed under probation supervision.
Jaskarnjit S. had been found to have committed an act which were he an adult would have constituted misdemeanor assault. The initial probation recommendation was that the juvenile be placed under probation supervision based upon a PAT score of 21. Jaskarnjit S. received no points based upon his gender or age, although he had good school attendance and performance and no history of school suspensions. Because there was no information indicating that the juvenile required supervision by the Department of Probation, he was granted an ACD, as a similarly situated female delinquent, who would have been awarded an extra 14 asset points, would have received a recommendation for an ACD. Jaheem S. had been involved in the robbery of a cell phone. Information received during the pendency of the case indicated that the juvenile was a behavioral problem at school, he had experienced a decline in his academic performance as well as school suspensions. Respondent's PAT total asset score of 21 resulted in a recommendation that he be released to the community with intensive supervision or that he be placed in OCFS custody, but the Court placed him under probation supervision because a similarly situated female would have been awarded 35 total asset points and an ACD recommendation.
Stephen C. was involved in the attempted robbery of an I-Pod and money along with four others. The victim was hit and kicked when he resisted the theft of his property. Although the underlying charges were serious, the information received indicated that Stephen C. had no prior contact with the law, that he was involved in pro-social community activities, and that he is a special education student who has some school attendance issues and he has been suspended from school for fighting. Stephen's PAT score was reported as 26 points which resulted in a recommendation for general probation supervision. Had the PAT program awarded Stephen C. an additional 14 asset points for gender, he would have had 40 total asset points, which would have undoubtedly resulted in an ACD recommendation. Based upon the information available, which included family dysfunction, the Court placed Stephen C. on Enhanced Supervision probation. Jennifer S. who was an accomplice of Stephen C. was also charged with robbery. Jennifer S. received a PAT score of 38 points which corresponded to an ACD recommendation. However, the PAT score was bolstered by the award of 14 points for Jennifer's gender and 3 points for her age. Had the 14 additional asset points not been awarded, the respondent's PAT total asset score would have been 24 points with a corresponding recommendation for probation supervision. While Jennifer S.'s circumstances were somewhat less severe than Stephen's, her individual circumstances indicated a need for supervision in the community, and she was placed under general probation supervision.
Anastasios K. had been involved in the non-forcible theft of cash from a livery cab driver. While Anastasios K. had attendance and behavioral difficulties including multiple suspensions at his previous school, his mother secured his transfer to a new school and his attendance and academic performance had significantly improved. Anastasios K. also had another prior theft arrest which was resolved without prosecution by his admission in this case. Respondent's PAT score was 16 total asset points, which corresponded to a recommendation of intensive probation supervision, but the probation officer overrode that recommendation and instead recommended that the juvenile be placed away from home. The psychologist who evaluated Anastasios K. "cautiously" recommended that he be allowed to remain in the community with intensive supervision and psychological counseling and medication, as his school performance and behavior had improved significantly and there were adults in the home to supervise him. Based upon the current information, respondent was allowed to remain in the community under strict conditions of probation. Finally, Lee Ann H. committed petty theft. Although the probation department received information that Lee Ann H. was psychologically disturbed, she did not attend school regularly, was a behavioral problem at home, abused marijuana and alcohol, frequently ran away for lengthy periods of time, was beyond adult supervision, and that her mother was dysfunctional and unable to properly supervise her, the PAT program granted Lee Ann the astounding total asset score of 35 points which would have corresponded to an ACD recommendation. The probation department appropriately overrode the PAT generated recommendation and instead recommended that Lee Ann H. be placed under intensive probation supervision or that she be placed in OCFS custody. Based upon the information available, including the recommendation of the psychologist, the Court concluded that Lee Ann H. could not be maintained in her community and she was placed in OCFS custody. Clearly, the PAT computer program was of little utility or guidance in this case, as reflected by the override made by the Department of Probation.
Thus, in the cases of Geraldine A., Tiffany H., Jennifer S., and Lee Ann H., the PAT computer program produced total asset scores which, when bolstered with additional asset points based upon the juvenile's gender, and on a few occasions her age, corresponded to ACD recommendations, while the PAT generated scores in the cases involving the male delinquents all corresponded to recommendations of probation supervision or placement with OCFS. Except for the fact that Stephen C. and Jennifer S. were accomplices, none of these cases presented identical facts, yet the PAT computer program mechanically treated each delinquent in a "one size fits all" approach driven by the happenstance of the child's gender. Each of these eight juveniles are distinct individuals with unique family and personal circumstances. The Court was required to assess the needs of each particular juvenile delinquent, without any preconceptions related to the child's gender or any particular characteristic such as, for example, his or her race, ethnicity or citizenship, within the framework of the available dispositional alternatives provided for by the statute. While the PAT computer program supposedly seeks to foster more uniform outcomes in juvenile delinquency cases, the PAT program overemphasizes certain often irrelevant factors and it completely fails to consider relevant facts. As presently designed, the PAT computer program would render Family Court Judges little more than mechanical magistrates who would impose a specified disposition based upon a computer generated score which often ignores the reality of a particular child's circumstances.
While there is no global remedy which this Court may impose, such as enjoining the Department of Probation from further utilization of the PAT program, the Court has met its obligation to impose the most appropriate order of disposition in these cases on an individual basis, notwithstanding the discriminatory impact which the PAT computer program has upon male juvenile delinquents. In that regard, it is obvious that female juvenile delinquents are equally ill served by a computer program which inflates their total asset score solely based upon the accident of their gender, so as to minimize the possibility that they will be placed away from home or subjected to supervision by the Department of Probation. By creating a system of internal gender discrimination against males, the PAT computer program also creates the very real possibility that female delinquents will receive less services or less supervision than they should, which itself creates an unnecessary risk of recidivism as well as an unnecessary risk to the safety of the community.
Ultimately the specifics of any reform of the juvenile justice system is a matter for the Legislature to decide in its collective wisdom. There are many competing interests at stake and the judicial system is not the proper forum for determining the priority of these interests.