Excerpts, Practice Manual For Children's Lawyers, Volume
Two: Representing Children in Juvenile Delinquency Proceedings, Part
Three: Fact-Finding Hearings, Ethics and Appeals
prepared by
The Legal Aid Society Juvenile Rights Practice
I. Governing
Statutes
Appeals
in juvenile delinquency proceedings are governed in the first instance by FCA
§§ 365.1 - 365.3. As to all matters not covered by those sections, FCA Article
Eleven, and, where appropriate, the CPLR, govern. FCA §1118; Douglas J. Besharov and Merril Sobie, Practice Commentaries, FCA §365.3; Matter
of Jose R., 83 N.Y.2d 388, 610 N.Y.S.2d 937 (1994) (court rejects
juvenile’s argument that FCA Article Three does not provide for presentment
agency appeal to Court of Appeals, and concludes that the Legislature intended
to leave operative earlier court decisions applying CPLR Article 56).
II. Appeals To Appellate Division As Of Right
A. Respondent
The
respondent can take an appeal to the Appellate Division as of right from any
order of disposition. FCA §§ 365.1(1). See Matter
of Yamoussa M., 220 A.D.2d 138, 646 N.Y.S.2d 319
(1st Dept. 1996) (failure to appeal from original dispositional
order precluded respondent from challenging original order when appealing from new
disposition ordered after he violated probation).
B. Presentment Agency
The presentment agency can take an
appeal as of right from:
- an
order dismissing the petition prior to the commencement of a
fact-finding hearing. FCA §§ 365.1(2)(a). See
Matter of Leon H., 83 N.Y.2d 834, 601 N.Y.S.2d 158 (1994) (presentment
agency could not appeal post-fact-finding dismissal on speedy disposition
grounds); Matter of Devon H., 225 A.D.2d 135, 650 N.Y.S.2d 120 (1st
Dept. 1996) (presentment agency could appeal dismissal after commencement of
fact-finding hearing where family court re-opened suppression hearing during
trial and granted suppression); Matter of Lee M., 126 A.D.2d 645, 511
N.Y.S.2d 79 (2d Dept. 1987) (presentment agency could appeal from order
dismissing certain counts of the petition since the separate counts could have
been presented in separate petitions).
- an
order of disposition, but only upon the ground that such order was invalid as a
matter of law. FCA §365.1(2)(b). Cf. CPL §440.40
(People may appeal from sentence which is invalid as a matter of law).
Note: The family court has inherent power to correct a mistake
or error in a dispositional order which is clerical in nature or results from
the court’s inadvertent misstatement. See People v. Wright, 56 N.Y.2d 613, 450 N.Y.S.2d 473 (1982).
- an order, entered before the
commencement of the fact-finding hearing, suppressing evidence pursuant to FCA
§330.2, provided that the presentment agency files a statement pursuant to FCA
§330.2(9) (i.e., statement alleging that deprivation of use of evidence
has rendered available proof insufficient as a matter of law or so weak in its
entirety that any reasonable possibility of proving allegations has been
effectively destroyed). FCA §365.1(2)(c). See Matter
of
III. Appeals To
Appellate Division By Permission
A. Respondent
The
respondent can take an appeal in the discretion of the appropriate Appellate
Division from any order. FCA §365.2.
B. Presentment Agency
Article
Three contains no provision granting the presentment agency the right to take
an appeal by permission. Although FCA §1112(a) provides that an appeal from any
order under the Family Court Act may be appealed in the discretion of the
Appellate Division, Article Three’s appeals provisions supersede their
counterparts in FCA Article Eleven, and, therefore, the presentment agency
cannot take an appeal by permission. See Matter of Leon H., 83 N.Y.2d 834. On the other hand, if the presentment agency
does appeal from a dispositional order, the appeal brings up for review any nonfinal order which necessarily affects the final
judgment. CPLR §5501(a)(1). See Matter of Dora P.,
68 A.D.2d 719, 418 N.Y.S.2d 597 (1st
IV. Appeals By
Other Aggrieved Parties
The
Fourth Department held in Matter of Lavar C.,
185 A.D.2d 36, 592 N.Y.S.2d 535 (4th Dept. 1992) that FCA §365.1 was
designed to limit the presentment agency’s ability to appeal, but not that of
another aggrieved party to an order who would otherwise have standing to appeal
pursuant to CPLR §5511. Since the New York State Division for Youth was a party
to the dispositional order, which directed DFY to place the respondent at one
of three specified sites, DFY had standing to appeal in Lavar
C.
V. Procedure
A. Notice Of
Appeal
An
appeal is taken by filing a written notice of appeal, in duplicate, with the
clerk of the family court in which the order was entered. The clerk must
endorse upon the notices the filing date and transmit the duplicate notice to
the clerk of the appropriate Appellate Division. FCA
§365.3(1), (4).
The
respondent must also serve copy of notice upon presentment agency. FCA §365.3(2). The Presentment Agency must also serve
respondent and the attorney who last appeared for respondent. FCA §365.3(3). But see Matter of Delila
M., 238 A.D.2d 342, 656 N.Y.S.2d 306 (2d Dept. 1997) (citing CPLR §5520(a),
court holds that failure to serve respondent was not fatal defect); Matter
of Steven S., 234 A.D.2d 13, 650 N.Y.S.2d 156 (1st Dept. 1996)
(same as Delila M.); CPLR §5520(a) (if
appellant serves timely notice of appeal but neglects through mistake or
excusable neglect to do another required act within time limit, court may grant
extension of time to cure omission).
B. Time Of
Appeal
1. Taking Appeal
An
appeal must be “taken” - that is, the notice of appeal must be filed - by the
earliest of the following dates: no later than thirty days after the adverse
party serves the order from which the appeal is taken, or thirty
days from receipt of the order by the appellant in court, or
thirty-five days from the mailing of the order to the appellant by the clerk of
court. FCA § 1113.
Service
of an order by the court does not start the clock running unless two
conditions are met: the order must contain the following statement: “Pursuant
to section 1113 of the family court act, an appeal must be taken within thirty
days of receipt of the order by appellant in court, thirty-five days from the
mailing of the order to the appellant by the clerk of the court, or thirty days
after service by a party or CHILD’S ATTORNEY upon the appellant, whichever is
earliest,” and there is an official notation in the court record
as to the date and manner of service. FCA §1113.
In
In criminal proceedings, a 30-day
deadline applies as well. CPL §460.10. Prior to
enactment of the Criminal Procedure Law, the general rule had been that,
regardless of the circumstances and equities, courts had no power to extend the
time for taking an appeal. People v. Dimmie,
15 N.Y.2d 578, 255 N.Y.S.2d 95 (1964); People v. Stottlemeyer,
9 A.D.2d 1022, 194 N.Y.S.2d 101 (4th
Arguably, the broad exception
contained in CPL §460.30, which bears on the fundamental right to appeal, is
applicable in juvenile delinquency proceedings on constitutional grounds.
2. Perfecting An
Appeal
According
to FCA §1121(7), an appeal must be perfected within 60 days of receipt of the
transcript or within any different time prescribed by the Appellate Division.
At present, the 60-day rule has no practical effect since each Appellate
Division has a governing rule. See 22 NYCRR §§ 600.11(3) (in First
Department, necessary papers and briefs must be filed within nine months of
date of notice of appeal), 670.8(e) (in Second Department, appeal shall be
deemed abandoned unless perfected within six months after date of notice of
appeal).
C. Assignment Of
Counsel
The
appointment of the child’s attorney pursuant to FCA §249 shall continue without
further court order or appointment where the attorney or the presentment agency
files a notice of appeal. The attorney may be relieved upon application to the
Appellate Division, and another attorney appointed. FCA
§1120(b).
D. Fees
The
fees required by CPLR §8002 are not required where the appellant or counsel
certifies that the appellant has been assigned counsel pursuant to FCA §249 or
is represented by a legal aid society or federally-funded legal services
program for indigents. FCA §1118.
E. Preferences
Appeals
from orders in Article Three proceedings shall be given preference and may be
brought on for argument on such terms and conditions as the Appellate Division
may direct. CPLR 5521.
F. Stays
The
timely filing of a notice of appeal does not stay the order from which the
appeal is taken. FCA §1114(a). A justice of the
Appellate Division may stay execution of the order on such conditions, if any,
as may be appropriate. FCA §1114(b).
G. Applicability Of
CPLR
The provisions of the civil
practice law and rules apply where appropriate. FCA §1118.
VI. Duties Of
Trial Counsel
A. Consultation With
Client Regarding Appeal
Upon the filing of a dispositional
order:
- counsel must advise the client
in writing of the right to appeal to the appropriate Appellate Division, the
time limitations involved, the manner of instituting an appeal and obtaining a
transcript of the testimony, and the right to apply for leave to appeal as a
poor person if the client is unable to pay the cost of an appeal. FCA §1121(2).
- counsel
must explain the procedures for instituting an appeal, the possible reasons
upon which an appeal may be based, and the nature and possible consequences of
the appellate process. FCA §1121(2).
- counsel
must ascertain whether the client wishes to appeal. FCA
§1121(3).
B. Action Required On Behalf Of Client Who
Wishes To Appeal
- counsel
must serve and file the notice of appeal and, when necessary, apply for leave
to appeal as a poor person. FCA §1121(3).
- when
trial counsel does not intend to represent the client on appeal, counsel must,
when appropriate, apply for assignment of appellate counsel for the client. FCA §1121(5).
- so that the client will be presumed
eligible for poor person relief and for assignment of counsel on appeal without
further motion in the appellate division, counsel also must file a
certification of continued indigency and continued
eligibility for appointment of counsel pursuant to FCA §1118, and such other
documents as may be required by the
appropriate appellate division. FCA §1121(3),(5).
- trial (now appellate) counsel
must, no later than ten days after filing the notice of appeal, request
preparation of the transcript of the proceedings, FCA §1121(6)(a), and counsel
assigned or appointed for purposes of appeal must request the transcripts no
later than ten days after receipt of notice of appointment. FCA §1121(6)(b).
- the transcript shall be
completed within thirty days of receipt of the request, and, if the
transcript is not completed within that time, the court reporter or the
director of the transcription service must notify the administrative judge of
the appropriate judicial district, who shall establish procedures to effectuate
the timely preparation of the transcript, and the appellate division may
establish additional procedures to effectuate the timely preparation of
transcripts. FCA §1121(7).
C. Reconstruction Of
Record
After
People v. Parris, 4 N.Y.3d 41, 790 N.Y.S.2d 421 (2004), it is clear that
certain duties arise when counsel learns that transcripts have been lost or for
some other reason cannot be obtained. Having held in the past that a loss of
reporter’s minutes is rarely sufficient reason in itself for reversing a
conviction, the Court of Appeals concluded that, “where a significant portion
of the minutes has been lost: (1) a reconstruction hearing should normally be
available for a defendant appealing his conviction after trial, if the
defendant has acted with reasonable diligence to mitigate the harm done by the
mishap; but (2) a defendant who has pleaded guilty is entitled to a
reconstruction hearing only where he can identify a ground for appeal that is
based on something that occurred during the untranscribed
proceeding.” The court noted that, under the reasonable diligence requirement,
a defendant should be diligent in maximizing the possibility that a
reconstruction hearing can accomplish its purpose. At a minimum, the defendant
should move for a reconstruction hearing promptly after learning that the
minutes have been lost, and pursue promptly other available means of
reconstruction, such as contacting the defendant’s trial counsel, the
prosecutor and the judge to jog their recollections and ask that they preserve
whatever notes or other records of the proceedings might exist. “A defendant
who does not proceed diligently is open to the suspicion that he thinks the
likelihood of really finding significant appellate issues remote - and would
prefer failure in reconstructing the proceedings to success, hoping to claim
prejudice when reconstruction proves impossible.”
VII. Dismissal Of
Appeal
A. Mootness
A
challenge on appeal to the initial disposition ordered by the family court will
be rendered moot when the period covered by the dispositional order has elapsed
before the appeal can be decided. Matter of Shamasia
M., 4 A.D.3d 359, 771 N.Y.S.2d 541 (2d Dept. 2004) (appeal from
dispositional order moot where initial placement period had expired and order
extending placement had been entered); Matter of Leonardo Q., 171 A.D.2d
563, 567 N.Y.S.2d 446 (1st Dept. 1991) (challenge to restrictive
placement was moot where appellant had already completed the two six-month
periods in secure and residential placement which was directed in the order).
However, the appeal from the adjudication of delinquency, based on a challenge
to the underlying fact-finding (or, it can be argued, based on a claim that the
matter should have been dismissed at disposition), is not moot in light of the
possible collateral consequences resulting from a delinquency adjudication
(e.g., the use of delinquency records in criminal sentencing proceedings
pursuant to FCA §381.2[2]). Matter of Daniel H., 236 A.D.2d 874, 653 N.Y.S.2d
756 (4th Dept. 1997); see also
Matter of Brittny
MM., 51 A.D.3d 1303, 858 N.Y.S.2d 815 (3rd Dept. 2008), lv denied, 11 N.Y.3d 713 (although respondent's PINS placement ended
after appeal was filed, appeal not moot because finding that respondent violated
probation, and resulting order of placement, may have collateral legal
consequences).
B. Abandonment By
Absconding Appellant
An
appeal brought by a child who has absconded from placement is subject to
dismissal as abandoned since the appellant is not available to obey the mandate
of the court. This is referred to as the “fugitive disentitlement” doctrine. Matter
of Magdalene N., 180 A.D.2d 799, 580 N.Y.S.2d 435 (2d Dept. 1992); see
also People v. Del Rio, 14 N.Y.2d 165, 250 N.Y.S.2d 257 (1964); People
v. Reyes, 292 A.D.2d 271, 738 N.Y.S.2d 850 (1st Dept. 2002), lv denied 98 N.Y.2d 701, 747 N.Y.S.2d 420
2002) (appeal dismissed where defendant has been deported and is not available
to obey mandate of court in event of affirmance;
regardless of whether defendant was "voluntarily" or
"involuntarily" deported, he has become unavailable as a consequence
of remaining in the United States for 4 years on a 3-month visa); but see People v. Taveras, 10 N.Y.3d 227, 855 N.Y.S.2d 417 (2008) (doctrine did not apply where
defendants were tried and sentenced in absentia, but were apprehended and
returned to court’s jurisdiction before filing appellate brief; whether appeals
should be permitted to proceed in such circumstances is subject to broad
discretion of Appellate Division, which may consider whether defendant's flight
caused significant interference with operation of appellate process; whether
defendant's absence so delayed appeal that the People would be prejudiced
in locating witnesses and presenting evidence at retrial; length of
defendant's absence; whether defendant voluntarily surrendered; importance and
novelty of issues raised; and merits of appeal).
C. Presumption In
Appeals From Bench Trials
Making
it extremely difficult to win a “fair trial” argument upon appeal from a delinquency adjudication is the presumption which
appellate courts invoke in favor of the judge at a bench trial. That is,
whenever the accused is arguing not that the judge admitted evidence
illegally - e.g., in a suppression ruling - but rather that the judge’s
ability to provide a fair trial was fatally compromised because the judge heard
unduly prejudicial evidence - e.g., because of a Sandoval ruling,
or a ruling denying a mistrial motion provoked by a prosecutor’s or a witness’
improper reference to inadmissible evidence - the appellate courts ordinarily
presume that the judge did not give the evidence any, or any undue, weight. See
People v.
VIII. Right To Speedy
Appeal
In Matter of Jermaine J., 6
A.D.3d 87, 775
N.Y.S.2d 287 (1st Dept. 2004), lv denied 3 N.Y.3d 606, the First Department
rejected an argument that the respondent’s due process rights were violated by
delays in the appellate process. The court noted that “[t]he factors considered
on a speedy appeal claim are similar to those of a constitutional speedy trial
claim, and include the extent of the delay, the reason for the delay, the
nature of the underlying charge, and whether or not there is any indication
that the defense has been impaired by reason of the delay (citations omitted).” However, “[w]hile the delay. . . was unusually
long,” respondent did not establish prejudice based upon a deprivation of his
liberty given the negative reports about him and the fact that he threatened
another person with a knife.
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