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Tuesday, February 14, 2012

Judge Rules on Serious Misconduct of Law Enforcement

Panel Cites Police Misconduct in Shelving Delinquency Finding
The New York Law Journal by Andrew Keshner - February 14, 2012

A police officer's "exceptionally serious misconduct" has prompted a Brooklyn appellate panel to reverse a teenager's adjudication as a juvenile delinquent in the interest of justice. The panel found that the police officer had submitted a defective affidavit claiming he watched a teenager hop a fence into private property although it was later disclosed that the officer was not present to witness the alleged act. "[W]e conclude that the attesting officer's execution of the defective affidavit, submitted as the primary support for the institution of this juvenile delinquency proceeding, constituted exceptionally serious misconduct of law enforcement personnel in the presentment of the petition," Justice Robert J. Miller (See Profile) wrote for a unanimous panel of the Appellate Division, Second Department in Matter of Steven C., 2011-02350. "Such conduct poses a grave risk to the assurances of due process afforded to juveniles by the Family Court Act, and it should not be countenanced." The ruling, released on Feb. 9, reverses Steven C.'s February 2011 adjudication as a juvenile delinquent by Queens Family Court Judge Fran Lubow (See Profile) and remands the matter to Family Court for proceedings under Family Court Act §375.1. The provision governs the sealing of records where a delinquency action has been terminated in favor of the respondent. Justice Miller was joined by Acting Presidiing Justice William F. Mastro (See Profile) and Justices Mark C. Dillon and Sandra L. Sgroi. The case was argued on Oct. 21.

With his lunch hour ending, Steven was arrested by police officers one day in April 2008 as he returned from a bagel shop to his Queens high school. Steven, a freshman, was handcuffed and put in a police vehicle with another student who had been arrested. A third student was also arrested nearby. The city in court papers alleged Steven and the two other teens had committed acts that would have constituted third-degree criminal trespass if they were adults. In a signed and notarized affidavit, a police officer, who was not identified in the decision, said he saw Steven and the two other youths jump over a fence into the backyard of a private residence. An accompanying document from the owner said she had not permitted anyone to be in her backyard at the time when the officer claimed he spotted the students. Judge Lubow presided over a fact-finding hearing that began in October 2009 and concluded in December 2010. The attesting officer did not testify at the hearing but two officers who arrested the other youths did testify. The officers said they saw Steven and the other two youths standing in the backyard. The youths fled once they made eye contact with the officers, jumping into another backyard, the officers said. The officers chased and arrested the other two youths, but not Steven. Both officers said at the hearing they were the only officers present, and both said the attesting officer was not there when they saw the youths. Steven and one of the other youths also testified, saying they were returning from the bagel shop when they saw the officers. They worried they would be cited for truancy and acknowledge that they ran away but insisted that they were never in a backyard. Steven said he was apprehended just as he tried to enter his school. In February 2011, Judge Lubow adjudicated Steven a juvenile delinquent and put him on probation for a year.

A 'Latent Defect'

In his decision, Justice Miller observed that juvenile delinquency petitions require non-hearsay allegation and said "[n]othing on the face of the petition rendered it insufficient." But testimony from the officers showed the attesting officer did not see the act in question, which, Justice Miller wrote, rendered the affidavit defective. He said juvenile delinquency petitions are subject to mandatory dismissal if the defect is facially apparent. But Justice Miller said if the defect is revealed later, as in Steven's case, the petition is not subject to mandatory dismissal. The petition, with its "latent defect," was however subject to dismissal in the interest of justice under Family Court Act §315.2[1]; the statute requires courts to weigh factors like "exceptionally serious misconduct of law enforcement personnel" against "the extent of harm caused by the crime." Here, Justice Miller said that the court needed to look no further than the "troubling shortcomings" of the police officer's affidavit. He said nothing in the record showed Steven had any contact with law enforcement before or after the arrest, nor was there anything to suggest he failed to follow the terms of his probation. Further, Justice Miller noted there were no claims that property or persons had been harmed in the incident. The officers testified the three youths were "merely standing in the backyard of the private residence at the conclusion of the students' lunch period." Steven C. was represented by Larry S. Bachner of Jamaica. Assistant Corporation Counsels Steven J. McGrath and Susan B. Eisner represented the city. Andrew Keshner can be contacted at

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