[*1]
People v Doe
2015 NY Slip Op 50945(U) [48 Misc 3d 1203(A)]
Decided on June 24, 2015
Criminal Court Of The City Of New York, Bronx County
Rodriguez-Morick, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 24, 2015
Criminal Court of the City of New York, Bronx County


The People of the State of New York

against

Jane Doe, Defendant.




2014BX011738



Substitute Defense Counsel



Yana A. Roy, Esq.



Yana A. Roy & Associates, P.C.



1225 Franklin Avenue, Suite 325



Garden City, New York 11530



Initial Defense Counsel



Suzanne M. McElwreath, Esq.



Law Office of Suzanne M. McElwreath



*Ms. McElwreath no longer has an office address, as she is no longer practicing as a private attorney.



The People



Maeve E. Huggins



Assistant District Attorney



Bronx County District Attorney Office



198 East 161st Street



Bronx, New York 10451


Jeanette Rodriguez-Morick, J.

Seventeen-year-old defendant Jane Doe ("Defendant") stands charged with assault and arson, and related charges, based on allegations that, during a verbal altercation with her biological mother ("Complainant" or "Mother"), she struck Complainant in the head, barricaded herself in a room, and tried to light a mattress on fire.

On January 22, 2015, the court held a hearing (the "Clayton Hearing") on Defendant's motion to dismiss in the interest of justice, dated September 25, 2014, filed pursuant to CPL 170.30 (1) (g), CPL 170.40, and People v Clayton, 41 AD2d 204 (2d Dept 1973).



For the reasons that follow, Defendant's motion is GRANTED.

Findings of Fact

Maria Kaidas, a social worker in the Juvenile Rights Practice of The Legal Aid Society, was the sole defense witness at the Clayton Hearing ("Hr'g Tr"). Her credible testimony was not controverted by the People.

Based on her testimony at the Clayton Hearing, all Clayton Hearing exhibits ("Clayton Ex"), defense counsel's motion [i.e., Notice of Motion, dated September 25, 2014; and the affirmation of Suzanne McElwreath, Esq., dated September 24, 2014 ("McElwreath Aff")]; the People's opposition papers, dated October 14, 2014 ("Aff in Opp'n"); the information, dated February 23, 2014; and court records, this court finds the following facts:



The Incident

On February 22, 2014, during an argument between Defendant and Complainant, Defendant struck Complainant in the head with a television remote control (information 2). She then ran to and barricaded herself in her bedroom and attempted to light a mattress on fire (the "Incident") (id.). Complainant left her apartment, called 911, and waited for the police to arrive (Aff in Opp'n 5). Responding to the scene, police officers observed white smoke emanating from beneath the barricaded bedroom door. When the officers gained entry to Defendant's room, they discovered a smoldering mattress.[FN1] Defendant stated, in relevant part, the following: "I didn't hit her. I threw the remote. My mom . . . just came in screaming at me. I was upset at my mom so I lit the bed on fire. I took all the pills" (id.). There were about five people in the apartment at that time (information 2). The apartment is found inside of a multi-level apartment building (see Clayton Ex 1).

Defendant was arrested on the instant charges and immediately admitted to the Psychiatric Emergency Room at St. Barnabas Hospital on account of the potential overdose (Hr'g Tr 23:11—15).



Pre-Incident

The overdose, it turns out, was one in a series of several self-injurious acts following Defendant's 2012 disclosure that her Mother's boyfriend, Luis Gallardo, had sexually abused her for several years commencing in 2007, when Defendant was 10 years old (Clayton Ex D, E; Hr'g Tr 8:13—9:8).[FN2]

This disclosure precipitated the filing of a family court petition (Clayton Ex D) and separate criminal charges against Gallardo, alleging that he had sexually abused Defendant. The Bronx Family Court proceedings resulted in a finding of abuse (Hr'g Tr 11:5), and the criminal case resulted in Gallardo's guilty plea (Clayton Ex E at 5:2—14). Gallardo was deported as a result of the plea (id. at 3:3—5; 7:2—6; Hr'g Tr 11:7). Defendant was ultimately placed in foster care (Hr'g Tr 28:21—31:9).

In December 2012—during the pendency of the family and criminal court cases commenced against Gallardo—Defendant was admitted to an outpatient mental health clinic, The Vida Guidance Center ("Vida"),[FN3] where she was diagnosed with "Major Depression, Recurrent, severe, [] and Post-Traumatic Stress Disorder" (Clayton Ex B).

In November 2013, Defendant began counseling services with Ms. Kaidas (Hr'g Tr 8:9—10). As a social worker in the Juvenile Rights Practice of the Legal Aid Society, Ms. Kaidas is responsible for interviewing, assessing, and counseling her child-clients. She also confers with adult caregivers and makes assessments and recommendations on behalf of her clients regarding appropriate services and interventions (id. at 7:18—25).

Ms. Kaidas testified that once Defendant revealed Gallardo's sexual abuse, Defendant's life changed as her relationship with her Mother deteriorated significantly. Defendant's Mother believed Defendant had fabricated the sexual abuse allegations (Clayton Ex C, addendum 1, ¶ 1 [c]). When her Mother appeared in court, it was in support of Gallardo. And Defendant was aware of this (Hr'g Tr 14:22—15:2).

Defendant sought mental health treatment, but her efforts were frustrated by her Mother's apparent denial of and refusal to accept what had happened.[FN4] Defendant's mental health records reflect that "conflicts with her mother including physical confrontations" were triggers for Defendant's "suicidal ideations, suicide attempts, and cutting." The mental health records establish the obvious:



[H]er mother's rejection' after [Defendant] reported that mother's boyfriend sexually abused her also is a factor underlying her depression. We have attempted to engage mother and to have her participate in collateral sessions and also family therapy sessions to address their issues. Mother has not been willing to participate as evidenced by her not responding to phone calls and voicemails, not attending appointments, and not attending case conferences scheduled with therapist and supervision to address client's needs. It's imperative that client's mother be part of client's treatment considering that their conflicted relationship is a trigger to client's high risk behaviors of cutting and suicidal gesturing.



(Clayton Ex B.)

Given her Mother's indifference to Defendant's condition, the Administration for Children's Services filed a petition ("Neglect Petition") against Complainant in family court alleging medical neglect. According to the Neglect Petition:



The subject child [Defendant] was psychiatrically hospitalized in June 2013 at Holliswood Hospital and in October 2013 at Bronx Lebanon due to suicidal ideations and self-injurious behavior. One of the psychiatric hospitalizations was a result of a physical altercation with the Respondent Mother. During the psychiatric hospitalization at Bronx Lebanon Hospital, the Respondent Mother stated that she did not believe the subject child was sexually abused, and believes that [Defendant] is "creating these stories."



(Clayton Ex C.)

The Incident at issue here arose in the context of this turmoil.



Post-Incident

Ms. Kaidas visited Defendant in the hospital and observed that Defendant looked "so depressed. Her hand was handcuffed to the bed, her foot was like cuffed to the bed . . . she hadn't showered in four days" (Hr'g Tr 24:8—20). Hospital personnel were unable to provide Defendant with her prescription medication because they needed her Mother's signature and could not reach her (id.).

Complainant's parental rights were ultimately terminated and Defendant was placed, on September 24, 2014, in a therapeutic foster home, where she receives monthly home visits and meets with a socio-therapist at the home on a weekly basis (id. at 28:21—29:12). Since then, Defendant has not engaged in self-injurious or suicidal behavior (id. at 31:24—32:5).

In fact, despite the odds against her, Defendant "has made great strides" (Clayton Ex A). Defendant has continued going to school, passed her classes, taken the SATs, and applied to several colleges, even interviewing at Bard College (id.; Hr'g Tr 32:10—15).



Except for the case before the court, Defendant has been a law-abiding person and has no prior criminal record.

Complainant is no longer cooperating with the prosecution (Aff in Opp'n 10).

Conclusions of Law

Where a Defendant establishes "some compelling factor, consideration, or circumstance clearly demonstrating that conviction or prosecution of a defendant upon [an] accusatory instrument or count would constitute or result in injustice" (CPL 170.40 [1]), the court is empowered to dismiss the accusatory instrument, in its discretion (see id.; Clayton, 41 AD2d at 207).

In determining whether such compelling circumstances exist, the court is required to assess certain statutory factors.[FN5] Because "the statute does not compel catechistic on-the-record discussion" [*2]of the ten statutorily enumerated factors (see People v Rickert, 58 NY2d 122, 128 [1983]), the court addresses only the salient ones below.

Seriousness and Circumstances of the Offense


/i>

Arson and assault are serious charges. As the People observe, "[w]hile no greater damage than burning of the mattress occurred, the potential for greater damage cannot be ignored" (Aff in Opp'n 6).

Extent of Harm Caused by the Offense


/i>

Concerning the arson, based on a photo of the mattress depicted in Clayton Ex 4, only a small portion of the mattress was burned.

As to the remaining charges, Defendant struck Complainant with a remote control, which resulted in bruising, swelling, and pain to Complainant's head. As the People acknowledge, these injuries "were minimal and did not require medical treatment" (Aff in Opp'n 6). The court finds that the harm actually caused was minor.

Evidence of Guilt


/i>

Given Complainant's refusal to cooperate with the prosecution, the People will not be able to meet their burden of proof at trial on any of the charges (see People v Prunty, 101 Misc 2d 163, 167 [Crim Ct, Queens County 1979] ["(I)t is the evidence available to the People that is contemplated by this factor."]).



While Defendant's admission that she set the mattress on fire and the photos of the burned mattress provide strong evidence in support of the arson charge, Complainant's testimony is still necessary to establish Complainant's interest in the mattress. With respect to the remaining charges, the People's case relies entirely on Complainant's testimony. Without her testimony, the People cannot prevail.

The History, Character and Condition of the Defendant


Up until the Incident, Defendant had never been in trouble with the law. After the Incident, Defendant had no further contact with the law.



For several years leading up to the Incident, Defendant had to grapple with circumstances that no child should ever have to contend with. She endured years of sexual abuse in silence, because she perspicaciously feared her Mother's reaction. But, upon the birth of her sister, and [*3]fearing that her sister would suffer the same fate, Defendant reported the abuse. Despite the obvious courage Defendant had to have summoned in order to report the sexual abuse, her Mother refused to believe and acknowledge it.



According to the medical records, it was her Mother's reaction and subsequent refusal to participate in Defendant's treatment—even declining to authorize prescribed medications—that exacerbated Defendant's trauma and is, in large part, the source and "trigger" for Defendant's "high risk behaviors" (Clayton Ex B).



Since being removed from her Mother's custody, Defendant has thrived (see e.g. Hr'g Tr 31:10 34:6).

Purpose and Effect of Imposing upon the Defendant a Sentence


Authorized for the Offense; and Impact of a Dismissal on the Safety or Welfare of the Community



According to the People, an authorized sentence is necessary (1) to ensure that Defendant appreciates "that her conduct in this matter is neither acceptable, nor lawful"; and (2) to deter her from "any future criminal behavior" (Aff in Opp'n 9, ¶ 6).



Defendant's steady improvement is proof that the central causes for her conduct, namely her Mother's damaging response to the incidents of sexual abuse and living in a highly-conflicted environment, have been blunted by Defendant's removal from the home. Imposing an authorized sentence—no matter how lenient—would do nothing more to help Defendant grasp the destructiveness of her past conduct nor deter her from such future conduct.[FN6] Indeed, it would effect the opposite.



As already noted, since being removed from her Mother's custody, Defendant has thrived. Among her several accomplishments is her adhering to her treatment plan, including attending individual therapy sessions and managing her medications (Clayton Ex A). Remarkably, Defendant also completed session I of the Yleana Leadership Summer Academy, a three-week, out-of-state, residential SAT course. By participating in this program, Defendant prepared herself for the SATs, sought college advising services, and developed leadership skills. She lived full time at an upstate University, slept in dormitories, ate with her peers, participated in athletic and social events, and went on cultural excursions (McElwreath Aff, Yleana letter, dated August 4, 2014; http://yleana.org/yleana.phpNo.Who_We_Are). Defendant's post-Incident endeavors show, not only little to no danger of recidivist conduct, but also extraordinary strength and resilience. Dismissal of the charges, therefore, would enhance the welfare of the community by removing any and all legal bars to Defendant's development as a productive member of society.



Impact of a Dismissal upon the Confidence of the Public in the Criminal Justice System

Here, by dismissal, "the public interests are as fully protected as [Defendant's] individual interests . . . for justice and mercy" (see Clayton, 41 AD2d at 206). On the other hand, a denial of Defendant's motion to dismiss would erode the public's confidence in the criminal justice system.



The court finds that Defendant has met her burden to show that the continuation of this case would result in fundamental injustice, so as to require dismissal under CPL 170.40. Accordingly, [*4]Defendant's motion to dismiss all counts is granted, and, pursuant to CPL 160.50, the clerk of the court is directed to seal the record of this action immediately.



This constitutes the decision and order of the court.



Dated: June 24, 2015



Bronx County, New York



SO ORDERED:



____________________________



Jeanette Rodriguez-Morick



Judge of the Criminal Court



Dismissal in interest of justice granted in light of defendant daughter's single act of criminal misconduct against complainant mother, who had previously denied daughter's sexual abuse by defendant-daughter's stepfather, despite proof to contrary

Footnotes


Footnote 1: Clayton Ex 4 shows that a small portion of the mattress's uppermost foam layer was burned off.



Footnote 2: Defendant was motivated to disclose the incidents of sexual abuse to prevent her newborn sister from suffering the same abuse (see McElwreath Aff, September 18, 2014 letter from Osbourn Association's Court Advocacy Services, at p 4).



Footnote 3: The Vida Guidance Center, a Cognitive Behavioral Therapy (CBT) Clinic, is an outpatient mental health clinic that the New York State Office of Mental Health has designated as a "Specialty Clinic" specializing in treating children with depression, anxiety, and trauma.



Footnote 4: Without Complainant's presence, Vida was not authorized to treat Defendant, making Defendant's attempts to attend scheduled appointments on her own futile (Clayton Ex B; Hr'g Tr 38:8 40:12).



Footnote 5: The ten factors are the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at trial;

(d) the history, character and condition of the defendant;

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant;

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense;

(g) the impact of a dismissal on the safety or welfare of the community;

(h) the impact of a dismissal upon the confidence of the public in the criminal justice system;

(i) where the court deems it appropriate, the attitude of the complainant or victim with respect to the motion; and

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose.

(See CPL 170.40 [1].)



Footnote 6: The People's latest offer is an adjournment in contemplation of dismissal conditioned on Defendant's continuing cooperation with her treatment providers and continued court appearances. Defendant declined this offer because of the potential adverse effects that a one-year conditional discharge period would have on her immigration status and her anticipated financial aid application.