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207 A.D.2d 783

In re Robert O.

Appellate Division of the Supreme Court of the State of New York · decided 1994-09-12

Decided 1994-09-12

Goldstein, J.,

¶1dissents and votes to reverse the order of disposition, to vacate the fact-finding order, and the order denying the motion to dismiss the petition, and grant the *786motion to dismiss the petition, with the following memorandum: I respectfully dissent. The majority’s decision here today effectively renders Family Court Act § 320.2 meaningless, and has an adverse impact upon the substantive speedy trial rights of juveniles. Family Court Act § 320.2 (1) provides in clear and unambiguous terms that "[i]f the respondent is not detained, the initial appearance shall be held as soon as practicable and, absent good cause shown, within ten days after a petition is filed”. Thus, if the section is given what appears to be its plainly intended meaning, there must be a showing of good cause for the failure to conduct an initial appearance within 10 days of the filing of the petition. By permitting the refiling of the petition in this case, where there has been no proffer of a reason for the delay, the majority has, in effect, changed the words "good cause” to "no cause”, and, in doing so, has deprived section 320.2 of any practical effect. It is axiomatic that statutes should not be construed in a manner which would render them ineffective (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 144, at 291). Moreover, when applying a statute, it should be assumed that the Legislature did not deliberately place therein a phrase intended to serve no useful purpose (see, Matter of Blatnicky v Ciancimino, 1 AD2d 383). Where a statute includes a "good cause” provision, that prerequisite should be honored. By allowing the presentment agency the simple expedient of refiling when it has failed to arrange for a juvenile’s arraignment within 10 days of the filing of the original petition, as required, the majority has obliterated both the 10-day time limit and the "good cause” requirement.

¶2Even more importantly, the majority fails to recognize the potential adverse effect of this holding on juvenile speedy trial rights. A juvenile who is not incarcerated is entitled to a fact-finding hearing within 60 days after the conclusion of the initial appearance (see, Family Ct Act § 340.1). Thus, the triggering event for the 60-day time limit in which to commence the fact-finding hearing is the initial appearance, which, pursuant to the dictates of section 320.2, should have taken place no later than 10 days after the filing of the petition. Under this statutory scheme, a total delay of no greater than 70 days is contemplated. Now, however, under the majority’s holding, the presentment agency can, with impunity, delay the initial appearance well beyond 10 days.

¶3If and when there is a dismissal, the agency need simply refile and proceed notwithstanding the delay. Indeed, an initial appearance could conceivably be delayed for months after *787the filing of the petition, and upon dismissal, the agency could refile immediately without any recourse to the juvenile, other than a possible claim under the generalized speedy trial requirements of section 310.2. The majority’s position that no speedy trial rights have been abridged because the appellant’s fact-finding hearing was commenced within 60 days of the initial appearance, ignores the untimeliness of the initial appearance itself. The 60-day requirement of section 340.1 is, in essence, anchored to the 10-day time limitation of section 320.2. If the 10-day limitation can be circumvented, the 60-day timeliness requirement of section 340.1 provides no assurance against delay, and, in fact, delays in excess of the total of 70 days set out in sections 320.2, and 340.1 are now possible, and, in fact, occurred in the case at bar.

¶4By focusing exclusively on section 340.1 in determining whether the juvenile’s speedy trial rights have been abridged, the majority ignores the connection between sections 340.1 and 320.2. These sections were enacted together in 1982 as part of a unified comprehensive legislative scheme "to assure swift and certain adjudication at all phases of the delinquency proceeding” (Matter of Frank C., 70 NY2d 408, 413; L 1982, ch 920 [codified as Family Ct Act, art 3, §§ 301.1-385.2]; see, Bill Jacket, L 1982, ch 920, mem in support of A 7974-A). The various provisions established "specific time limitations to govern each stage of the proceeding from arrest through final disposition” (Matter of Frank C., supra, at 413; see, e.g., Family Ct Act §§ 307.1, 308.1, 320.2, 332.1, 340.1, 350.1). These provisions are necessarily interrelated. It cannot be said that a juvenile’s speedy trial rights have not been abridged because section 340.1 has been complied with, while a delay in the juvenile’s initial appearance in derogation of section 320.2 is countenanced.

¶5I believe, contrary to the assertion by the majority, there is no true analogy between the refiling permitted in this case, and the filing of new petitions in cases where there was a dismissal for deficiencies in factual allegations or facial insufficiencies in the petition (see, Matter of Detrece H., 78 NY2d 107; Matter of Shannon FF., 189 AD2d 420). In the latter cases, the petition was dismissed because the charges were not supported by legally sufficient evidence or the petition did not provide sufficient notice thereof. It makes perfect sense to permit refiling after such a dismissal, because the error in the original petition can be corrected by the filing of a new petition containing legally sufficient evidence to support the charges and providing legally sufficient notice. In other words, *788where there has been a dismissal on the ground of factual or facial insufficiency, the basis for the dismissal can be cured by the filing of a new petition containing factually sufficient allegations. A dismissal for violation of a timeliness requirement cannot be so remedied. Time periods once elapsed cannot be recaptured, and the filing of a new petition does not address or in any way rectify the transgression.

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