IN THE MATTER OF WILLIE "E", ALLEGED TO BE A JUVENILE DELINQUENT. GEORGE
DENTES, AS TOMPKINS COUNTY DISTRICT ATTORNEY, RESPONDENT, WILLIE "E",
APPELLANT.
88 N.Y.2d 205, 666 N.E.2d 1043, 644 N.Y.S.2d 130 (1996).
May 7, 1996
3 No. 88(1996 NY Int. 109)
Decided May 7, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Paul J. Connolly, for Appellant.
Stephen B. Flash, for Respondent.
SMITH, J.:
The primary issues here are (1) whether the 60 day period for
commencing a fact-finding hearing in the Family Court begins with the
filing of the first petition when the petition is refiled due to the
dismissal of the first petition, and (2) whether the facts here
constitute good cause for an adjournment despite the court's failure
to so state on the record. We conclude that the filing of the initial
petition commences the 60 day period and that good cause for the
adjournment of the fact- finding hearing appears on the record.
The first petition, filed in this case on November 9, 1993, was an
order of removal from the Tompkins County Court to the Family Court
pursuant to CPL Article 725. A grand jury hearing the case had made a
request for removal pursuant to CPL 190.71. Pursuant to Family Court
Act § 311.1(7), the order of removal was deemed to be a petition in
the Family Court. The document charged that on or about September 23,
1993, appellant committed (1) sexual abuse in the first degree by
subjecting a person to sexual contact by forcible compulsion (Penal
Law § 130.65(1)), and (2) sexual misconduct by engaging in sexual
intercourse with a female without her consent (Penal Law § 130.20(1)).
An initial appearance on the petition originally scheduled for
November 22, 1993 was rescheduled for November 24, 1993. Appellant
moved to dismiss the petition on the grounds that the initial
appearance was not scheduled within ten days after the filing of the
petition as required (Family Ct Act § 320.2(1), 340.1(3)) and that the
petition was jurisdictionally defective because the grand jury minutes
had not been filed within 30 days after the order of removal was filed
SNIPPETS:
GEORGE DENTES, AS TOMPKINS COUNTY DISTRICT ATTORNEY, RESPONDENT, WILLIE "E", APPELLANT.
The primary issues here are whether the 60 day period for commencing a fact-finding hearing
We conclude that the filing of the initial petition commences the 60 day period and that good
The first petition, filed in this case on November 9, 1993, was an order of removal from the
Pursuant to Family Court Act § 311.1, the order of removal was deemed to be a petition in the
The document charged that on or about September 23, 1993, appellant committed sexual abuse in
An initial appearance on the petition originally scheduled for November 22, 1993 was
The law guardian orally moved for a dismissal of the second petition on the grounds that the
The assistant district attorney commented that any adjournment would have to be based upon a
The court adjourned the matter to February 10, 1994 without stating on the record that it was
By order to show cause dated February 2, 1994, appellant moved to dismiss the second petition
The court denied the motion, stating that the circumstances of the adjournment on January 10,
Appellant's first argument is that the 60 day time period in which the fact-finding hearing
Respondent contends that because a petition dismissed for a jurisdictional defect is a
In Matter of Robert O. (87 NY2d 9), this Court did not reach the issue of whether the 60 day
This conclusion is consistent with the Legislative mandate that there be a swift
appellant argues that the 15 days for discovery and 30 days for motions permitted by statute
Consequently, when counsel seeks time for motions, which would delay the fact-finding hearing
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.
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