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Patricia S. Constantikes, for appellant.
Linda H. Young, for respondent presentment agency.
New York County District Attorney, amicus curiae.
SMITH, J.:
Appellant contends that before finding that
a juvenile has violated the conditions of an adjournment in contemplation
of dismissal (ACD), procedural due process principles require Family Court
to conduct a hearing, at which hearsay evidence may be considered only
after a finding of good cause by the court to dispense with the confrontation
of witnesses. Since neither the Family Court Act nor the requirements
of procedural due process impose such restrictions upon the discretion
of the Family Court to vacate an ACD order, we affirm the order of the
Appellate Division. The inquiry conducted by the Family Court here
in determining whether appellant violated the conditions of the ACD satisfied
the requirements of due process and the presentment agency presented sufficient
evidence of violations.
Respondent presentment agency filed two petitions,
arising out of separate incidents, charging appellant, who was 13 years
old at the time, with conduct which would have constituted crimes if committed
by an adult. Based on appellant's admissions, Family Court issued
fact-finding orders that appellant's acts would have constituted the crimes
of possession of burglar's tools under one petition, and criminal mischief
in the fourth degree and possession of burglar's tools under the second
petition, if committed by an adult.
At the dispositional hearing, appellant, with
the agreement of the presentment agency, sought an ACD for both petitions.
Family Court granted appellant's request and issued one ACD order, dated
June 12, 1992, for both petitions. The ACD order specified three
conditions. Appellant was required to (1) attend school while at
Graham Windham, a residential facility; (2) continue residing at Graham
Windham unless and until adopted; and (3) avoid further contact with court.
Upon granting the ACD, Family Court spoke directly to appellant, stating,
"All right,
Edwin, you understand that if within six months you have no further contacts
with the law and you are not re-arrested and you are not brought before
the Family Court again that this matter, at the end of six months, will
be dismissed and ultimately you will start with your record back again."
In December 1992, the presentment agency filed
a petition alleging that appellant had violated two conditions of the ACD
and seeking to vacate the ACD order. The violation petition alleged
that appellant had failed to comply with the conditions that he continue
to reside at Graham Windham, and have no further contacts with court, by
failing to abide by Graham Windham's rules and regulations, and being arrested.
The arrest report was attached to the petition.
The supporting deposition accompanying the
violation petition was sworn to by the security manager at Graham Windham
and stated,
"I observed
[appellant] engage in the following activities:
"[Appellant] has been AWOL [absent without leave] from the facility on 8/31/92 and 11/13/92 [and] both times he was arrested.
"[Appellant] is disrespectful to the staff at Graham Windham.
"Beginning in July 1992 behavior in school deteriorated and cooperation with counseling dwindled.
"[Appellant] is beyond the control of the staff at Graham Windham [and] needs a more structured facility."
On December 10, 1992, the parties appeared
before Family Court on the violation petition. Appellant argued that
the petition failed to allege a violation of the conditions of the
ACD. Appellant also argued that he was entitled to a hearing,
equivalent to hearings conducted for parole or conditional discharge violations,
to determine whether appellant had violated the terms of the ACD order.
The presentment agency appeared with a Graham Windham caseworker and stated
readiness to elicit testimony from the caseworker regarding the allegations
in the petition if necessary.
Family Court found the petition jurisdictionally
sufficient and adjourned the proceedings to December 14, 1992 for a hearing
on whether the ACD order should be "revoked." On December 14, a Graham
Windham caseworker testified that since the issuance of the ACD order,
appellant had gone AWOL from Graham Windham several times, been arrested
on more than one occasion, and fought with other residents. The caseworker
testified that she knew of appellant's arrests by reviewing police reports
and that she had not personally witnessed appellant go AWOL. She
also testified that not all of the violations of Graham Windham rules were
obtained by her from other sources. At times, the caseworker refreshed
her recollection from papers in her possession.
Appellant moved to strike all of the caseworker's
testimony on the ground that it was based on hearsay. The motion
was denied. Appellant's motion to dismiss the violation petition
was also denied. Family Court found that appellant had failed to
abide by the rules and regulations of Graham Windham by going AWOL "numerous"
times and fighting with other residents. The Court also found that
appellant had violated the condition that he have no further contact with
court by being arrested twice since the ACD was granted. Family Court
vacated the ACD order and restored the matter to the calendar. Appellant
subsequently waived his right to the dispositional hearing and consented
to placement with the Division for Youth for one year. The dispositional
orders for both petitions were entered on January 8, 1993.
Appellant appealed the dispositional orders
and the Appellate Division affirmed. The Appellate Division found
that Family Court had not abused its discretion in vacating the ACD
order. The Appellate Division also held that the hearing conducted
by Family Court satisfied procedural due process requirements. Appellant
appealed to this Court as of right on
constitutional grounds.
Appellant argues that the ACD was equivalent
to a dispositional order because the ACD was granted after fact- finding
orders on the petitions were issued. Analogizing the ACD
to parole and probation, appellant contends that he should have received
the procedural protections accorded defendants and juveniles in parole
revocation and probation violation hearings. Appellant contends that he
was deprived of procedural due process because Family Court permitted hearsay
testimony at the hearing on the violation petition without first finding
good cause to dispense with the confrontation of witnesses.
Section 315.3 of the Family Court Act provides,
in relevant part,
"1.
Except where the petition alleges that the respondent has committed a designated
felony act, the court may at any time prior to the entering of a finding
under 352.1 and
with the consent of the respondent order that the proceeding be 'adjourned
in contemplation of dismissal'. An adjournment in contemplation of
dismissal is an adjournment of the proceeding, for a period not to exceed
six months, with a view to ultimate dismissal of the petition in the furtherance
of justice. Upon issuing such an order, providing such terms and
conditions as the court deems appropriate, the court must release the respondent
* * *." An ACD order may be issued on the ex parte motion of the
presentment agency, sua sponte by the court, or on motion of the juvenile
(Family Ct Act 315.3[3]).
In Matthews v Eldridge (424 US 319), the United
States Supreme Court set forth a balancing test for determining whether
a State has provided adequate due process protections in a
particular case. The private interest at stake and the risk of
an erroneous deprivation of that interest, or the value, if any, of additional
or substitute safeguards, must be balanced against the State interest embodied
in the challenged statute (id., at 335; see also, Curiale v Ardra Ins.
Co., ___ NY2d ___ [decided April 30, 1996]).
Although an ACD resembles the dispositions
of conditional discharge and probation (see, Family Ct Act 352.2), because
a juvenile's continued freedom is contingent on the satisfaction of certain
conditions, an ACD is not a disposition of a juvenile delinquency proceeding.
Unlike dispositional orders, which may only be issued after the conclusion
of a dispositional hearing and a finding that a juvenile requires "supervision,
treatment or confinement" (Family Ct Act 352.1), an ACD may only be granted
to a person who has not been adjudicated a juvenile delinquent (see, Family
Ct Act 315.3 [providing that the court may order an ACD "at any time
prior to the entering of a finding under section 352.1"]; 352.1 [court
may issue a finding that a person is a juvenile delinquent after the conclusion
of the dispositional hearing]; 352.2 [listing orders of disposition]).
The consequences of a dispositional order,
even if the order imposes minimal restraints on the juvenile's liberty
(such as conditional discharge or probation) differ significantly from
the consequences resulting from an ACD order. Since dispositional
orders follow upon the entry of a delinquency finding, the records of the
juvenile delinquency proceedings are
not sealed and the finding may constitute a predicate offense. In contrast,
an ACD order, whether issued before or after fact- finding, provides a
juvenile with the opportunity to purge the record of any evidence of wrongdoing
since an ACD will result in the dismissal of the petition (see, Family
Ct Act 375.1; Sobie, Practice Commentaries, McKinney's Cons Laws of NY,
Book 29A, Family Ct Act 353.1 at 523-524). Even if violation of
the ACD's conditions may ultimately result in a dispositional order, the
ACD order does not, ab initio, have the same effect.
Moreover, upon vacatur of an ACD order, Family
Court must conduct a dispositional hearing, and any dispositional order
which may result is subject to judicial review. In contrast, no new
dispositional hearing is required upon a finding that a juvenile delinquent
has violated the conditions of probation or a conditional discharge (see,
Family Ct Act 360.3[6]). Given these material differences between
ACD and dispositional orders, appellant's contention that he is entitled
to the same procedural protections afforded probationers and parolees is
unpersuasive.
The dissent argues that the liberty interest
of a juvenile who has received an ACD is "indistinguishable from the conditional
liberty interest of a parolee or probationer" (dissent at 12). However,
this conclusion disregards the material differences between an ACD and
a dispositional order. Even when an ACD is granted after fact-finding,
there is no
correlative verdict of "guilt" which permits disposition, i.e., the
juvenile has not been adjudicated a delinquent. Thus, Family Court
s "dispositional" discretion within the meaning of the Family Court Act
is held in abeyance pending the ACD. If the ACD proceeds uneventfully,
the court will not exercise its dispositional powers because the petition
is dismissed.
Similarly, in the adult context, an ACD is
neither an acquittal nor a conviction (Hollender v Trump Village Cooperative,
58 NY2d 420). Moreover, an ACD in adult criminal
proceedings is unavailable once fact-finding has occurred. An
ACD may be granted only before the entry of a guilty plea or the commencement
of trial (CPL 170.55[1]). Thus, the ACD in juvenile delinquency proceedings
affords the juvenile greater latitude in expunging any record of wrongdoing
by effectively permitting the parties to act as if fact-finding had not
occurred and that dismissal of the petition may ultimately be warranted.1
As a practical matter, the issuance of an
ACD is a suspension of the proceedings. A vacatur of the ACD order
merely brings the juvenile back to the same circumstances he would have
faced after the conclusion of fact-finding. The only loss the ACD
juvenile has suffered, which other juveniles proceeding to disposition
after adverse fact-findings have not, is the
possibility that the petition will be dismissed. Thus, contrary
to the dissent's assertion, the juvenile does not suffer a "grievous loss"
(see, dissent at 15). Like other juveniles, the
juvenile whose ACD has been vacated is entitled to a dispositional
hearing with its attendant procedural protections.
Appellant's circumstances are more analogous
to the those encountered by the defendants in People v Outley (80 NY2d
702), where we considered the level of due process protection required
for defendants who were accused of violating a condition of their plea
agreements. Outley involved three unrelated cases where the trial
courts, in accepting defendants' guilty pleas, agreed to impose certain
sentences on condition that the defendants not be arrested during release
while awaiting sentencing. The defendants were arrested prior to
their sentencing dates and, in each case, the trial court imposed a greater
sentence than conditionally agreed to at the plea proceeding.
The defendants in Outley argued that due process
principles required that trial courts conduct an evidentiary hearing and
establish, by a preponderance of the evidence, that defendants had committed
the crimes for which they were arrested before the no arrest condition
could be deemed breached. We rejected this contention and held that
although the mere fact of arrest would not be sufficient to establish a
violation of the conditional sentencing agreement, where an issue concerning
the validity of the post plea charge exists, or where a defendant denies
involvement in the underlying crime, any inquiry which satisfies the court
that a legitimate basis for the arrest exists provides sufficient due process.
Like the defendants in Outley who admitted
the factual predicates for their crimes, the appellant here admitted the
factual allegations of the petitions. Moreover, like the defendants
in Outley, the expected resolution of appellant's case was contingent upon
the satisfaction of certain conditions known to appellant.
We hold that the requirements of procedural
due process are satisfied when a Family Court determines, after conducting
an inquiry into the allegations of the violation petition, and
providing the juvenile with the opportunity to respond to those allegations,
that there is a legitimate basis for concluding that a juvenile has violated
a condition of an ACD order and states the reasons, on the record, for
reaching that determination. The form and extent of the inquiry necessary
to determine the existence of a legitimate basis for vacating an ACD order
will vary according to the particular circumstances of each case, and lie
within the discretion of the Family Court. However, a more detailed
inquiry will be required where a juvenile denies the factual basis of an
alleged violation than in cases where such issues have not been raised.
Here, there was a hearing with an opportunity for cross-examination.
The legitimate basis test preserves the wide
discretion accorded Family Court by the Family Court Act to fashion appropriate
relief in the context of juvenile delinquency proceedings, while satisfying
the principles of due process enunciated in Eldridge. The consequences
attendant upon the vacatur of an ACD order are the commencement of a dispositional
hearing and the entry of a dispositional order. Since it is likely
that a juvenile will receive a disposition more restrictive than the terms
of an ACD, appellant has an attenuated
liberty interest in the least restrictive dispositional order available
under the Family Court Act -- a conditional discharge (where the ACD does
not contemplate supervision by the Department of Probation) or probation
(see, Family Ct Act 352.2[1]). The interest is attenuated because
at the conclusion of fact-finding, a juvenile does not possess a vested
liberty interest in an ACD, and the dispositional hearing provides sufficient
due process for a dispositional order.
Furthermore, the risk of an erroneous deprivation
of the juvenile's attenuated liberty interest is low. Family Court
must be satisfied that there is a legitimate basis for concluding that
a juvenile has violated the conditions of an ACD, and the juvenile
is provided with the opportunity to respond to the allegations. The
next step, disposition, may not occur without a
dispositional hearing, and any dispositional order which issues is
subject to judicial review. Thus, the juvenile has two opportunities
to protect the limited liberty interest at stake,
once during Family Court's inquiry into the existence of an ACD condition
violation, and a second time at the dispositional hearing.
As noted previously, Family Court may grant
an ACD on its own motion, or on the ex parte motion of the presentment
agency or the juvenile, without a dispositional hearing. Moreover,
we do not question the Family Court's discretion to hold a hearing in an
appropriate case before an ACD may be vacated and the case restored to
the calendar. The difference between the majority and the dissent
is (1) whether a hearing is required in every instance before an ACD order
is vacated and (2) whether a good cause finding is necessary before admitting
hearsay evidence at such a hearing. Requiring a constitutionally
mandated good cause finding introduces unnecessary complexity into the
process of granting and vacating ACD orders. Grafting additional
and unnecessary requirements onto the ACD process will only decrease incentives
to utilize this method of resolving delinquency petitions to the detriment
of all parties, including the juvenile. Finally, the State interest
in speedily vacating an ACD order once a juvenile has violated the conditions
of the ACD is high, given the legislative mandate that there be a swift
determination of charges brought against juveniles (see, Matter of Willie
E., ___ NY2d ___ [decided May 7, 1996]).
The dissent s reliance on Morrissey v Brewer (408 US 471) is misplaced.
The defendants in Morrissey were convicted and served a portion of their
sentences before being released on parole. Thus, unlike the appellant,
who had not been adjudicated a delinquent and whose interest in dismissal
of the petition evaporated upon vacatur of the ACD order, the Morrissey
defendants had been sentenced, deprived of their liberty, then conditionally
released. Because the Morrissey defendants had been incarcerated,
revocation of parole had the consequence of returning them to imprisonment.
Here, vacatur of the ACD entitled appellant to a dispositional hearing
before he could be found delinquent and "sentenced." Consequently,
the liberty interests of a juvenile who faces vacatur of an ACD is not
analogous to the conditional liberty interest of a parolee.
Moreover, the parole of the Morrissey defendants
was revoked upon written reports by parole officers to the Iowa Parole
Board, an administrative agency. The Supreme Court held that under
these circumstances minimum requirements of due process required that a
parolee be provided with,
"(a) written
notice of the claimed violations of parole; (b) disclosure to the parolee
of evidence against him; (c) opportunity to be heard in person and to present
witnesses
and documentary evidence; (d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good cause
for not allowing confrontation);
(e) a neutral and detached hearing body * * *; and (f)
a written statement by the factfinders as to the evidence relied on and
reasons for revoking parole" (Morrissey, at 489).
The legitimate basis test provides many of the procedural protections
enumerated by the Morrissey court, and adequately protects the attenuated
liberty interest of juveniles who have
been granted ACDs.
A juvenile receives notice of an alleged violation
of an ACD condition by a violation petition which must be verified and
contains the factual basis for the allegations in the petition.
In conducting the inquiry into the existence of a legitimate basis
for vacating the ACD order, Family Court must provide the juvenile with
an opportunity to respond to the allegations in the petition. Family
Court, a judicial body, is the neutral and detached party which
will determine whether an ACD order should be vacated and is required to
state the basis for its decision on the record. Moreover, the Morrissey
Court explicitly permitted consideration of hearsay evidence, including
"letters, affidavits, and other material that would not be considered admissible
in an adversary trial" (id.) in the parole revocation decision. Similarly,
Family Court should be permitted to consider hearsay evidence in determining
whether an ACD condition has been violated.
Applying the legitimate basis test to the
circumstances of this case, we conclude that Family Court s vacatur of
appellant's ACD order was proper. Although a hearing is not required
in every case, Family Court held a hearing here to determine if there was
a basis for vacating its ACD order. Appellant received the opportunity
to contest the allegations of the violation petition at the hearing and
cross-examined the only witness who testified, a caseworker at Graham Windham
who was familiar with appellant's case.
Based on her own knowledge and on information
obtained from documents which she had reviewed,2 the caseworker testified
that appellant had been arrested, gone AWOL from the facility and fought
with other residents. The record reflects that appellant did not
deny the basis or the occurrence of any incidents alleged in the petition
even though provided with that opportunity at the hearing. Consequently,
there is no contrary evidence in the record refuting the testimony of the
caseworker or the arrest report attached to the violation petition.
Under these circumstances, the quantum of evidence was sufficient to establish
the violations.
Instead of denying the allegations of the
violation petition, appellant argued the incidents did not violate the
conditions stated in the ACD order because an arrest did not
constitute contact with court, and appellant continued to reside at
Graham Windham until the facility determined that appellant could no longer
stay there. Neither contention has merit.
Family Court specifically informed appellant
at the time that the ACD was granted that the petitions would be dismissed
if "within six months you have no further contacts with the law and you
are not re-arrested and you are not brought before the Family Court again."
Under these circumstances, appellant's arrests constituted a violation
of the ACD order. Since appellant did not deny the factual circumstances
of his arrests, no issue as to the propriety of the arrests was raised
and the arrest report attached to the petition and the testimony of the
caseworker were sufficient to establish this violation.
The condition that appellant continue residing
at Graham Windham contains an implicit requirement that appellant follow
the rules and regulations of the facility. Thus, the evidence
presented by the presentment agency that appellant had gone AWOL and
fought with residents was sufficient to establish additional violations
of the ACD order. Appellant cannot complain of being involuntarily
ejected from Graham Windham when his own conduct rendered continued residence
at Graham Windham inappropriate.
Accordingly, the order of the Appellate Division
should be affirmed, without costs.
F O O T N O T E S
1. Thus, the juvenile receives another opportunity for a clean
start despite the existence of a finding that the juvenile has committed
acts which, if committed by an adult, would have
constituted a crime.
2. These records should have been introduced into the record of the proceedings.
-----------------------------------------------------------------
LEVINE, J. (dissenting):
We respectfully
dissent. The conditional liberty interest of a juvenile released
subject to the conditions imposed by a post-factfinding adjournment in
contemplation of dismissal
is essentially the same as that of a probationer or parolee. Therefore,
we would hold that the procedural due process protections accorded such
defendants in Morrisey v Brewer (408 US 471) and Gagnon v Scarpelli (411
US 778), including a hearing at which the juvenile has "the right to confront
and cross-examine adverse witnesses (unless the [court] specifically finds
good cause for not allowing confrontation)" (Morrisey Brewer, supra,
at 489 [emphasis supplied]; accord, People ex rel. McGee v Walters, 62
NY2d 317), are required before a final determination that the juvenile
has violated the conditions of the ACD can be
made.
Edwin L. admitted to committing acts which
if committed by an adult would have constituted the crimes of criminal
mischief and possession of burglar's tools. Subsequent to this
factfinding stage, the court issued an order adjourning the proceeding
for six months in contemplation of dismissal in furtherance of justice.
As statutorily provided, the issuance of
the ACD compelled the juvenile's release (see, Family Court Act 315.3[1]
["Upon issuing such an order, * * * the court must release the respondent."]).
As further permitted by Family Court Act 315.3, Edwin L.'s release was
subject to specific conditions: he was required to attend school at his
current residential placement, to continue residing there until or unless
adopted, and to avoid further contact with the court. At the
end of the adjournment period, unless the matter was earlier restored to
the calendar, the petition would be "deemed" dismissed in furtherance of
justice (Family Court Act 315.3[1]).
However, shortly before the six-month ACD
period was to expire, the presentment agency filed a petition alleging
that Edwin L. had violated various conditions of the ACD order and
seeking to restore the matter to the calendar for a dispositional hearing.
The violation petition was supported by an arrest report and a sworn deposition
from the security manager at Edwin L.'s residential placement facility,
purporting to be based on first hand knowledge of the juvenile's alleged
violations. Family Court upheld the petition against a facial attack, but
agreed that due process required a hearing to determine whether any
of the conditions of the ACD order had in fact been violated. The court
reasoned that it "could not tak[e] as tru[e] the allegations [of the violation
petition] unless [it] ha[d] some testimony" on the matter.
At the subsequent ACD violation hearing, the
presentment agency did not call as a witness the deponent from the juvenile's
residential placement facility (who claimed first- hand knowledge of the
alleged violations) nor did it seek to introduce as business records any
documentary evidence concerning the alleged arrests or any other violations.
Instead, the presentment agency put on only one witness, a social worker
employed at Edwin L.'s residential facility, who, over repeated hearsay
objections, testified from written reports as to the juvenile's arrests
and his having violated the school's rules and regulations. The juvenile's
law guardian cross-examined the social worker regarding the specifics of
the alleged ACD order violations and the basis of the witness' knowledge;
the witness expressly conceded that she had no first-hand knowledge of
Edwin L.'s arrests or of his going AWOL from the residential facility.
Although the witness denied in conclusory fashion that all of her information
regarding facility rule violations was hearsay, she never identified which
violations she had direct knowledge of or how she had acquired that knowledge.
Thus, despite the majority's statement that
the social worker witness testified "[b]ased on her own knowledge and on
information obtained from documents which she had reviewed" (Maj Slip Opn,
at 16 [emphasis supplied]), the fact is that her personal knowledge was
never demonstrated as to any of the alleged violations; moreover, contrary
to the implications of the majority's statement, it was clear that the
witness in fact had no personal knowledge of the arrests and AWOL incidents,
which were the more serious violations, and the most relevant to any decision
to terminate Edwin L.'s ACD. Even the majority recognizes the weak
foundational basis for the witness' testimony when it admonishes that the
records upon which the witness relied "should have been introduced into
the record" (Maj Slip Opn, at 16 n 2).
Additionally, Family Court's reliance on solely
hearsay evidence cannot be overcome by the lack of contrary evidence refuting
the testimony of the social worker or the fact that
Edwin L. did not "deny[] the allegations of the violation petition"
(Maj Slip Opn, at 16). The presentment agency sought to restore the
matter to the calendar on the basis of violations
of conditions imposed by the ACD order. The respondent juvenile
had no statutory obligation to testify on his own behalf and had no burden
to disprove the allegations in the violation petition. The agency, and
not the juvenile, had the burden to demonstrate that those violations had
occurred, and by challenging the soundness of the factual basis of those
allegations through evidentiary objections and cross-examination, Edwin
L. rightfully sought to put the agency to its burden of proof. Under
these circumstances, Edwin L.'s mere silence cannot be transformed into
an admission that he had committed the alleged condition violations.
The majority's reliance on his failure to deny the specific allegations
or to introduce evidence to refute the social worker's testimony is inappropriate
and contrary to our basic adversarial jurisprudence in juvenile justice
as well as criminal justice (see, In re Gault, 387 US 1).
Thus, contrary to the majority's position,
the "legitimate basis" inquiry of People v Outley (80 NY2d 702) has no
application to the circumstances of this case. In Outley, the
three defendants were promised lenient sentences conditional on not
being arrested before the sentencing hearing. All three defendants
conceded the factual existence of a facial violation of their conditional
release (their subsequent arrests) (see, id., at 713-714) and did not challenge
the validity of a "no- arrest" condition to a plea and sentence agreement
(id., at 713). They argued instead that they were entitled to an evidentiary
hearing on whether they had in fact committed the criminal acts for which
they were arrested. Thus, the issue presented in that case was the
minimum due process requirement when "the defendant has breached a no-arrest
condition by being arrested before the sentence but denies any complicity
in the underlying crime" (id., at 712 [emphasis supplied]). Here,
in contrast, the issue is what procedural due process protections are required
to establish the existence of a condition violation, since there is no
legitimate basis to conclude that Edwin L. conceded or admitted that he
had violated any of the conditions of his ACD order.
The issue thus remains whether Edwin L. was
accorded sufficient process prior to the determination that he had violated
the conditions of the ACD order and prior to the entry
of the dispositional order. In our view, Morrisey v Brewer (408
US 471, supra), sets forth the controlling principles for deciding that
issue.
In Morrisey v Brewer the Supreme Court resolved
whether due process protections apply to a revocation of parole and if
so, what process is constitutionally required. The Court noted that
parole is essentially rehabilitative in nature and is designed to enable
convicted defendants to participate as constructive members of their community
as soon as they are safely able (id., at 477). To that end, parolees
are released from confinement subject to specified conditions to reinforce
good behavior. The enforcement mechanism inherent in the parole system
is the ability to return the parolee to prison if the conditions of release
are violated (id., at 478). Thus, the parolee "is entitled to retain
his liberty as long as he substantially abides by the conditions of his
parole" (id., at 479). The Court recognized, however, that "not every
violation of parole conditions automatically leads to revocation.
* * * [O]rdinarily [steps will not be taken] to have parole revoked unless
* * * the violations are serious and continuing so as to indicate that
the parolee is not adjusting properly and cannot be counted on to avoid
antisocial activity" (id., at 479). Accordingly,
the Court in Morrisey described the parole revocation process as actually
involving a two-step inquiry, first, a determination whether in fact a
violation occurred, and second, a judgment on the appropriate institutional
response, which itself requires an accurate resolution of the first inquiry.
The first step in a revocation decision thus
involves a wholly retrospective factual question: whether the parolee has
in fact acted in violation of one or more conditions of his parole.
Only if it is determined that the parolee did violate the conditions
does the second question arise: should the parolee be recommitted to prison
or should other steps be taken to protect
society and improve chances of rehabilitation? * * * The second question
involves the application of expertise by the parole authority in making
a prediction as to the ability of the
individual to live in society without committing antisocial acts. This
part of the decision, too, depends on facts, and therefore it is important
for the board to know not only that some
violation was committed but also to know accurately how many and how
serious the violations were (id., at 479-480 [emphasis supplied]).
The Court then went on to hold that "[i]mplicit
in the system's concern with parole violations is the notion that the parolee
is entitled to retain his liberty as long as he substantially abides by
the conditions of his parole," and for this reason, "[parole r]evocation
deprives an individual, not of the absolute liberty to which every citizen
is entitled, but only
of the conditional liberty properly dependent on observance of special
parole restrictions" (id., at 479-480).
In examining whether due process attaches
to this conditional liberty interest, the Court rejected the notion that
labeling parole a privilege rather than a right would be determinative
(id., at 481, citing Graham v Richardson, 403 US 365, 374 [Frankfurter,
J., concurring]). Rather, the inquiry focuses on "the extent to which
an individual will be 'condemned to suffer grievous loss'" (id., quoting
Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 168).
Thus, in concluding that the nature of the parolee's liberty interest falls
within the "liberty or property" protected by the Fourteenth Amendment,
the Court looked to the functional realty of parole -- that the parolee
has justifiably relied on an express or implied promise that parole will
only be revoked if he fails to satisfy the conditions imposed on his release
and the fact that the parolee is "[able] to do a wide range of things open
to persons who have never been convicted of any crime" (id., at 482).
Though the parolee is subject to conditions not imposed on ordinary citizens,
his situation differs substantially from prison confinement. Because
he has been released based on an evaluation that he will be able to return
to society and function as a responsible individual, "he can be gainfully
employed and is free to be with family and friends and to form the other
enduring attachments of normal life" (id.). The Court thus concluded:
the liberty of a parolee, although indeterminate,
includes many of the core values of unqualified liberty and its termination
inflicts a 'grievous loss' on the parolee and often on others. By
whatever name, the liberty is valuable and must be seen as within the protection
of the Fourteenth Amendment (id., at 482 [emphasis supplied]).
Having determined that due process protections
are implicated by parole revocation, the Morrisey Court examined what process
is due. The Court recognized that the factual nature of the two-step
parole revocation process demands "an informal but effective hearing,"
given the obvious interest of the parolee in his conditional freedom and
of the State "in not having parole revoked because of erroneous information
or because of an erroneous evaluation of the need to revoke parole" (id.,
at 484, 485; see also, Black v Romano, 471 US 606, 612, rehearing denied
473 US 921).
The Court ultimately held that one of the
minimum procedural protections constitutionally required at the parole
revocation hearing is "the right to confront and cross-examine adverse
witnesses (unless the [adjudicator] specifically finds good cause for not
allowing confrontation)" (Morrisey v Brewer, supra, at 489; see also, People
ex rel. McGee v Walters, 62 NY2d 317, supra [requiring finding of good
cause and weighing of pertinent factors before hearsay evidence admitted
at parole revocation hearing]). Because the revocation hearing is
not the equivalent of a full adversarial criminal trial, however, this
confrontation requirement, the procedural protection which Edwin L. contends
was constitutionally required for the determination that he had violated
the conditions of his ACD release, is not without flexibility. In
Gagnon v Scarpelli (411 US 778, supra), the Supreme Court explained that
the Morrisey confrontation requirement does not prohibit the use of conventional
substitutes for live testimony at parole and probation revocation hearings,
including affidavits, depositions, and documentary evidence, when the adjudicator
determines that such alternatives are appropriate (id., at 782 n 5; see
also, Morrisey v Brewer, supra, at 489 ["the process should be flexible
enough to consider evidence including letters, affidavits, and other material
that would not be admissible in an adversary criminal trial"]).1 Thus,
this Court has stated that in determining whether confrontation is required
at a parole revocation hearing the adjudicator should consider "not only
the preference for confrontation, but also whether, under the circumstances,
confrontation would aid the fact-finding process, and the burden which
would be placed on the State in producing the witness" (People ex rel.
McGee v Walters, 62 NY2d, at 322, supra).
The same minimum procedural protections required at a parole revocation
hearing, including the confrontation requirement, are likewise constitutionally
required for revocation of probation which also "result[s] in a loss of
liberty" and which, like parole revocation, involves a two-step process
in which the violation must be proven and the government's discretion to
revoke probation exercised on the basis of that finding (Gagnon v Scarpelli,
411 US, at 782, 784- 785, supra).
Because there is no question that juveniles
subject to loss of liberty in delinquency proceedings are generally entitled
to the same due process protections as criminal defendants (see, In re
Gault, 387 US 1, supra; People ex rel. Silbert v Cohen, 29 NY2d 12), the
only pertinent question is whether a juvenile released subject to conditions
imposed by a post-factfinding adjournment in contemplation of dismissal
is similarly situated to a probationer or parolee such that the same due
process protections are required. For purposes of the due process
inquiry, we conclude that their situations are essentially identical.
First, a post-factfinding ACD release is similar
to parole and probation in that, despite a prior adjudication of guilt
(i.e., the commission of a criminal act), a determination is made
that confinement is not required and that the juvenile will likely
be able to lead a productive, law-abiding life (and society will be adequately
protected), if he or she is released subject to the conditions of an ACD
order. Thus, like probation and parole, a post-factfinding ACD is
a rehabilitative measure and the juvenile released subject to the conditions
of a post-
factfinding ACD order is able to do many of the things other juveniles,
who have been found guilty of or have admitted to acts which would otherwise
constitute a crime, may not. And, like the parolee and probationer,
the juvenile relies on the promise that his conditional freedom will remain
in effect if the conditions of the ACD order are not violated.
Thus, in contrast to the majority's description
of the juvenile's "attenuated liberty interest in the least restrictive
dispositional order" and the lack of a "vested liberty interest in an ACD"
(Maj Slip Opn, at 12), it is the juvenile's interest in his or her continued
conditional liberty -- his or her release from the court's supervision
subject to the conditions imposed by
the ACD order -- which is the constitutionally significant liberty
interest at stake in this case. And it is indistinguishable from
the conditional liberty interest of a parolee or probationer. The
majority's statement that "[t]he only loss the ACD juvenile has suffered,
which other juveniles proceeding to disposition after adverse fact-findings
have not, is the possibility that the petition will be dismissed" (Maj
Slip Opn, at 9), completely ignores the conditionally released juvenile's
interest in the continuation of the conditional liberty he or she experiences
once the court orders an ACD. As Morrisey teaches, it is the termination
of that conditional liberty interest which requires the due process protections
outlined in that case.
Second, the loss of the juvenile's conditional
liberty for a violation of conditions of a post-factfinding ACD, like parole
and probation revocation, entails the same two-step process.
There is an initial factual determination whether the juvenile has
violated any of the conditions of the ACD order. If violations are
found, the matter is restored to the calendar for
a dispositional hearing (see, Family Court Act 315.3), where the
Family Court must determine whether, in light of the juvenile's violation
of the ACD order, the juvenile "requires
supervision, treatment or confinement" (id. 352.1). This second
stage of inquiry, whether to apply further freedom- restricting sanctions,
is parallel to the second step of the
parole and probation revocation process, to determine whether "the
parolee [should] be recommitted to prison or * * * other steps [should]
be taken to protect society and improve chances of rehabilitation" (Morrisey
v Brewer, 408 US, at 480, supra). Thus, like the parole and probation revocation
determination, the first inquiry -- whether the juvenile has violated a
condition of the ACD order -- is purely factual. And the second --
consisting of a "prediction as to the ability of the individual to live
in society without committing antisocial acts" (id.) -- though involving
an exercise of discretion, "depends on [the accuracy of those] facts" (id.).
The majority's reliance on the procedural protections afforded the juvenile
by the dispositional hearing (see, Maj Slip Opn, at 8, 12, 13-14) is thus
misplaced, because the court's dispositional discretion --
and the juvenile's conditional liberty interest -- hinges on the accuracy
of the determination that a violation occurred and "how many and how serious
the violations were" (Morrisey, supra, at 480).
Nonetheless, the majority places decisive
significance on the fact that before sanctions are imposed at the dispositional
hearing -- akin to sentencing in the criminal context -- Family
Court must make a finding that the juvenile is a delinquent, and maintains
that this is what distinguishes Edwin L.'s situation from that of a parolee
or probationer (see, Maj Slip Opn, at
7-9). But the adjudication of the juvenile as a delinquent merely
follows from the court's determination that the child is in need of "supervision,
treatment or confinement" and, as we
have demonstrated, that determination is nothing other than second
step of the parole or probation revocation process where the adjudicator
determines, in its discretion, whether, despite the violation of his or
her conditional release, the person should remain free or be subject to
confinement and custody (see, Morrisey v Brewer, 408 US, at 480, supra).
Thus, the
dispositional hearing does not distinguish the termination of a post-factfinding
ACD from parole or probation revocation for due process purposes.
Finally, the State's interests in "restoring
[the juvenile] to normal and useful life within the law" and in "not having
[the adjourned matter restored to the calendar] because of erroneous information
or because of an erroneous evaluation of the need to [restore the matter],
given the breach of [the ACD] conditions" (id., at 483), are the same in
this context as they are in the context of parole and probation revocation.
Thus, despite the fact that a post-factfinding
adjournment in contemplation of dismissal is not listed as a dispositional
alternative like probation and conditional release (the
revocation of which are statutorily protected by a wide array of due
process protections) (see, Family Court Act 352.2[1] [list of dispositional
alternatives]; id. 360.2, 360.3 [notice and hearing on violation]),
it is the functional equivalent of probation or parole since, upon a determination
that the juvenile has violated the conditions of his ACD release and a
determination that the juvenile requires "supervision, treatment or
confinement," the juvenile suffers the same "grievous loss" of liberty.
Therefore, the additional procedural protection sought by the juvenile
in this case -- a requirement that the court make a finding of good cause
before admitting otherwise inadmissible hearsay evidence -- is constitutionally
mandated (Morrisey v Brewer, supra, at 489).2
The remaining grounds relied upon by the majority
to reject appellant's position are also unavailing. The argument
that these additional procedural requirements may inhibit the
presentment agency from recommending an ACD order (see, Maj Slip Opn,
at 13) was made and rejected in Morrisey (Morrisey v Brewer, supra, at
475, 483). Moreover, the issuance of an ACD is not dependent upon
the presentment agency's recommendation, but requires only the consent
of the court and juvenile (see, Family Court Act 315.3 ["the court may
* * * with the consent of the respondent [juvenile] order that the proceeding
be 'adjourned in contemplation of dismissal'"] [emphasis supplied]; cf.,
CPL 170.55[1] [criminal ACD may be issued only with consent of both parties]).
This Court, likewise, has already rejected the argument that procedural
hearing requirements will unduly infringe on the informal and rehabilitative
nature of Family Court proceedings (see, People ex rel. Silbert v Cohen,
29 NY2d 12, 15-16, supra) and the majority's concern that requiring confrontation
in the absence of a good cause finding will "introduce[] unnecessary complexity
into the process of granting and vacating ACD orders" (Maj Slip Opn, at
13) is mitigated by the fact that Morrisey requires only an informal hearing.
"A simple factual hearing will not interfere with the [Family Court's]
exercise of discretion" (Morrisey v Brewer, 408, US, at 483, supra).
The legislative mandate that there be a swift determination of the charges
against the juvenile will not be unduly thwarted by an additional hearing
in this context since the lengthening of the process is a factor the juvenile
may consider in consenting to the ACD order (see, Mem of Div of Crim Justice
Servs, Bill Jacket, L 1973, ch 806 [commenting on predecessor to Family
Court Act 315.3 which arguably permitted the court to issue an ACD over
the juvenile's objection]).
For all of the foregoing reasons, Family Court's
entire (or at the very least substantial) reliance on hearsay evidence
to determine that Edwin L. violated the conditions of his ACD,
without finding good cause for dispensing with confrontation, violated
his right to procedural due process and, therefore, the order affirming
the dispositional order of Family Court should be reversed.
F O O T N O T E S
1. The majority's description of Morrisey as permitting at the parole revocation hearing the consideration of hearsay evidence that would not be admissible in an adversary trial (Maj Slip Opn, at 15, quoting Morrisey v Brewer, supra, at 489), ignores the requirement in that case that confrontation cannot be dispensed with unless good cause for doing so is found (see, Morrisey v Brewer, supra, at 489). As clarified by the Supreme Court in Gagnon v Scarpelli (supra), the evidentiary flexibility permitted in Morrisey is contingent upon a finding that there exists good cause for dispensing with confrontation (see, Gagnon v Scarpelli (411 US, at 782 n 5, supra ["we emphasize that we did not in Morrisey intend to prohibit use where appropriate of conventional substitutes for live testimony"] [emphasis supplied]), otherwise the confrontation requirement would be meaningless. Thus, the majority's contention that "[t]he legitimate basis test provides many of the procedural protections enumerated by the Morrisey court," including notice and an opportunity to respond to the allegations (Maj Slip Opn, at l4-l5), disregards the fact that it does not provide the Morrisey right to confrontation -- the very procedural safeguard sought by Edwin L. in this case.
2. A fortiori, Morrisey v Brewer demands that, in all post-
factfinding ACD cases where termination of the ACD is sought for violations
of conditions, an "informal but effective hearing" be held (Morrisey v
Brewer, 408 US, at 485, supra), even when the use of hearsay might be permitted.
Thus, I cannot agree with the Majority's suggestion that "a hearing is
not required in every case" (Maj Slip Opn, at 15).
The presentment agency's reliance
on ACD procedures in the criminal courts (see, CPL 170.55) to support the
argument that a hearing is not required, is misplaced. In the context
of a criminal proceeding, in contrast to a juvenile delinquency proceeding,
an adjournment in contemplation of dismissal may only be issued prior to
the guilt-finding stage (CPL 170.55[1]).
Assuming without deciding that due process would not require a hearing
to terminate an ACD in criminal court, the effect of the termination would
be to restore the defendant's case to a trial calendar where his or her
liberty interest would be subject to the full panoply of pretrial and trial
due process protections accorded one accused of a crime. Thus a criminal
defendant would not appear to need the full procedural safeguards required
by Edwin L. here.
* * * * * * * * * * * * * * * * *
Order affirmed, without costs. Opinion by Judge Smith. Chief Judge Kaye and Judges Simons and Bellacosa concur. Judge Levine dissents in an opinion in which Judges Titone and Ciparick concur.
Decided July 9, 1996