The New York City Department of Probation has submitted an application pursuant to

Family Court Act §308.1 (9) and 22 NYCRR §205.22 (d) (4) for leave of court to continue its

adjustment efforts with respect to Edwin R. for an additional two month period. No juvenile

delinquency petition and no application authorizing detention prior to the filing of a juvenile

delinquency petition has been filed against Mr. R., and the Court does not have personal

jurisdiction over the youth at this time (see, Matter of Markim Q., 7 NY3d 405, 411 [the juvenile

delinquency petition is the jurisdiction-creating document under article 3]).

According to the documentation submitted along with the Department's application,

Mr. R., who was born on April 14, 1995, was arrested in on February 10, 2011 for the

commission of an act which would constitute the crime of Criminal Possession of a Weapon in

the Fourth Degree (P.L. §265.01). The arrest report prepared by the New York City Police

Department indicates that a police officer observed Mr. R. to be in possession of a switchblade

knife at the southwest corner of Linden Place and 35th Avenue in Queens County at 11:05 A.M.

Mr. R. was arrested and the switchblade knife was recovered incident to that arrest. Mr. R. was

released to the custody of his mother by police officers upon the issuance of a Family Court

appearance ticket which directed that he appear at the offices of the Department of Probation [*2]

located at the Queens County Family Court building on February 15, 2009 at 9:00 A.M. (Fam. Ct. Act §307.1 [1]).

Mr. R. and Manny R., who is apparently his older brother, appeared at the offices of

the Department of Probation on February 15, 2011 for intake. Information was provided to a

Probation Officer along with a release for the Department of Education to release school records

to Probation. According to the information sheet on file, Mr. R. indicated that he is enrolled in

the 9th grade at Flushing High School and he also indicated that he had been previously arrested.

Mr. R. was then directed to return to the office on February 22, 2011.

On February 22, 2011 Mr. R. appeared at probation with his mother and his brother. A

parental consent for the release of Department of Education records was signed by the mother on

that day and an intake report was then completed by a Probation Officer. According to that

report, the Probation Officer spoke with the arresting Police Officer who indicated that the

juvenile "was seen with another person behind some buildings. When he approached them they

had finished "smoking" but was in possession of the lighter/switchblade. He states that he is the

youth officer and knows the [youth] well. He is often truant and high off marijuana. He believes

the [youth] would benefit from drug testing and counseling." The Police Officer also indicated

that he was in agreement with the Department of Probation's plan to offer the juvenile

adjustment services.

The records of the Department of Education which were accessed by the Probation

Officer reflected that Mr. R. attended school 74% of the scheduled days in Spring 2010, but that

he has "54 absences since September 2010". In addition, the records indicate that Mr. R. "was

suspended on June 19, 2009 for starting a fire", suspended on February 25, 2009 "for taking [*3]

property", suspended on November 10, 2008 for "graffiti", and suspended on June 11, 2008 "for horseplay." The report of Mr. R.'s school grades reflected that he failed 9 of10 classes in which

he had been enrolled at Flushing High School and that he has accumulated only 1 credit towards

graduation.

Mr. R. signed an "agreement to cooperate with adjustment services" on February 22,

2011 in which he agreed to attend school regularly, attend all classes, and obey school rules.

He also agreed to complete an essay on a topic selected by the Department of Probation, to

cooperate with the Probation Officer, to commit no further illegal acts, to keep all appointments

with the Probation Officer, to obey the lawful commands of his parent and guardians, to obey a

curfew , and to participate in a marijuana abuse program (the "THC Group") at Daytop, a drug

treatment program located in Queens County.

Mr. R. returned to the Department of Probation offices on March 2, 2011 along with his

mother. As of that date, Mr. R. had attended the marijuana program at Daytop on February 23,

2011 and he was next scheduled to attend on March 2, 2011. Mr. R.'s mother informed the

Probation Officer that she had a forthcoming meeting with her son's Guidance Counselor to

address school issues, especially her son's failure to attend school. The Probation Officer then

confirmed that Mr. R. attended th THC Group program at Daytop on March 11, 2011 and that he

was next scheduled to attend on March 16, 2011.

The Probation records reflect that Mr. R. was asked to submit to a urinalysis examination

by Daytop on March 23, 2011 but that he "stalled" and he told the program staff that he "had

smoked" on March 18, 2011. Mr. R. appeared at the Department of Probation on March 30, 2011

and the Probation Officer informed him that "because he refused to be drug tested, he would no [*4]

longer be a part of the THC Group" at Daytop. The Probation Officer informed Mr. R.'s mother of the situation on April 1, 2011, and the mother agreed to appear at Probation with her son on

April 13, 2011.

Mr. R. and his mother appeared at the Department of Probation on March 13, 2011 and

the Probation Officer administered an oral drug test to Mr. R.. The results of the test were

positive for marijuana. The Probation Officer made a new appointment for Mr. R. to attend

Daytop that day, and the Probation Officer directed that Mr. R. return to the Department of

Education on April 20, 2011. The records of the Department of Education indicated that Mr. R.

missed school on the following days since he first appeared at the Department of Probation on

February 15, 2011: February 16, 17, 18, and 28, March 1, 2, 3, 11,17, 18, 23, 24, April 4, 5, 7, 8,

11 and 12, 2011.

Family Court Act §308.1 provides for the adjustment of "suitable cases" prior to the

institution of formal judicial proceedings against a person who may be a juvenile delinquent

within the meaning of Family Court Act §301.2 (1). Adjustment services under Family Court

Act §308.1 is "the informal consensual resolution of a case under probation service auspices"

(Matter of Aaron J., 80 NY2d 402, 406 [citation omitted]). Adjustment is a "nonadversarial

dispute resolution mechanism [which] can be highly beneficial to an accused juvenile because,

if successful, it enables the juvenile to avoid the potentially harsher consequences of a formal

fact-finding hearing and judicially imposed disposition" (id.). "The centerpiece of the legislation

authorizing adjustment services is Family Court Act §308.1, which provides a detailed

description of the procedures to be followed and establishes the time limits that must be obeyed.

Under subdivision (9) of that statute, efforts at adjustment . . . may not extend for a period of [*5]

more than two months without leave of the court, which may extend the period for an additional

two months" (id.).

Where the Department of Probation seeks to extend its provision of adjustment services

beyond the initial two month period, the applicable court rules require that the Department

submit a "written application to the court" for approval (22 NYCRR §§205.22 [d] [4]; 205.23

[b]). The application must "set forth the services rendered to the potential respondent, the date of

commencement of those services, the degree of success achieved, the services proposed to be

rendered and a statement by the assigned probation officer that, in the judgment of such person,

the matter will not be successfully adjusted unless an extension is granted" (22 NYCRR §205.23

[b]).

The Court has considered the adjustment efforts which have been undertaken by the

Department of Probation, the nature of the criminal conduct which resulted in the juvenile's

arrest, the juvenile's school attendance or lack thereof, his academic performance, his adherence

to school rules, and the fact that the juvenile is apparently abusing marijuana. While the Depart-

ment of Probation has made efforts to enroll Mr. R. in a substance abuse program and he has

apparently attended on a sporadic basis, the program has yet to have had any success in curbing

his abuse of marijuana. While the alleged criminal act did not result in any injury to other persons

or result in the destruction of property, it appears to be part of a larger pattern of maladaptive

behavior which includes a failure to attend school, a failure to pass classes, a failure to adhere to

school rules, and the continuing abuse of marijuana.

At this juncture, the Department of Probation has undertaken appropriate measures to

address the problems facing Mr. R. However, he continues to test positively for marijuana use [*6]

and there has been little progress in addressing his academic shortcomings and his failure to

attend school regularly. Although the Court routinely approves requests to continue adjustment

services because adjustment "often entail[s] such time-consuming ameliorative measures as

multiple counseling sessions, psychological evaluations and referrals to community service

agencies" (Aaron J. at 407), there is little indication in this case that such efforts will prove

successful without the authority of the Court to compel the participation and compliance of Mr.

R.. However, the Court has no authority over the juvenile at this time and he cannot be

compelled to comply with the services being offered by the Department of Probation.^[FN1]

Under these circumstances, and considering that Mr. R. will be 16 years old on April 14,

2011 and subject to criminal prosecution for further violations of law, the Court declines to

extend the period of adjustment and the Department of Probation shall proceed in accordance

with Family Court Act §308.1 (10) and 22 NYCRR §205.22 (d) (4).

This constitutes the decision of the Court. A copy shall be provided to the Department of

Probation and to the Presentment Agency.

E N T E R:

________________________________

John M. Hunt

Judge of the Family Court

Dated:April 15, 2011

Jamaica, New York