Family Court, Kings County, August 10, 2020

Legal Aid Society, Juvenile Rights Division, Brooklyn (Lori A. Masco of counsel), for respondent.

James E. Johnson, Corporation Counsel, Family Court Division, Brooklyn (Erin Dunn and Bryan Spiro of counsel), for presentment agency.

[*2]In March 2020, New York City faced the onset of an unprecedented health crisis related to the COVID-19 virus. In response to the pandemic, Governor Cuomo issued Executive Order No. 202.8, which, in relevant part, tolled "any specific time limit for the commencement . . . of any legal action . . . as prescribed by the procedural laws of the state, including . . . the family court act."^[FN1] Executive Order 202.8 granted tolling provisions to specific procedural time limits set forth for the commencement, filing and service of any legal action.

M.R. (hereinafter respondent) has filed the instant motion to dismiss the juvenile delinquency petition filed against him, asserting that the Family Court does not have jurisdiction over him since he had already turned 18 years of age when the juvenile delinquency petition was filed against him, and as a result, the court must dismiss the instant petition against him as being untimely. It is the respondent's contention that Executive Order 202.8 did not grant a tolling period to age because that would be legally and biologically impossible (see Masco mot to dismiss untimely petition ¶ 15).

The court rejects respondent's interpretation of Executive Order 202.8 and finds that all time frames contained in the Family Court Act, including all statutes of limitations, have been tolled by the executive order of the Governor, and application of the toll makes this petition timely filed for commencing a juvenile delinquency proceeding under article 3 of the Family Court Act.{**69 Misc 3d at 370}

The filing of a juvenile delinquency petition under the Family Court Act is analogous to any statute of limitations toll, in that they impose time limits for initiating legal proceedings which were delayed by the COVID-19 pandemic. While the Governor logically cannot stay "age" per se, his order/directive did stay the 18-year age requirement, as the court system was itself operating under COVID-19 constraints.

On May 22, 2020, when respondent was 17 years of age, he was arrested on suspicion of attempted murder. He was subsequently charged by the Kings County District Attorney's Office with attempted murder in the second degree, criminal possession of a weapon in the second degree, and related charges. On that very same day, respondent appeared before a criminal court accessible magistrate and was remanded to Crossroads Juvenile Detention Facility.

Respondent was arraigned on May 26, 2020, in Kings County Supreme Court, Part YP-1, before the Honorable Craig Walker, where bail was set and he was remanded to Crossroads Juvenile Detention Facility.

On May 29, 2020, a virtual preliminary hearing was conducted before the Honorable Craig Walker pursuant to Criminal Procedure Law § 180.60, in which he found that the People met their burden of reasonable cause to believe that the respondent committed felony criminal [*3]possession of a weapon; but not the top charge in the complaint, attempted murder in the second degree. Judge Walker ruled that the People failed to meet their burden to retain the adolescent offender case pursuant to CPL 722.22. The People then filed an extraordinary circumstances motion on June 23, 2020. Defense counsel was instructed to file a response by July 1, 2020, and Judge Walker adjourned the matter to July 15, 2020, for his decision and continued the respondent's detention.

In the interim, the respondent turned 18 years of age in June 2020.

On July 15, 2020, after a preliminary hearing and a failed extraordinary circumstances motion, Judge Walker ordered the matter removed to Family Court. On that same date, the Department of Probation interviewed the respondent and determined that the respondent's case was not appropriate for adjustment and the case was referred to Corporation Counsel, Family Court Division. A prepetition detention hearing was{**69 Misc 3d at 371} held before the Honorable Clark V. Richardson, who found apparent jurisdiction under Family Ct Act § 307.4, continued secure remand of the respondent and adjourned the matter to July 17, 2020, for the filing of a juvenile delinquency petition.

On July 17, 2020, Corporation Counsel filed the instant juvenile delinquency petition charging respondent with criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]); criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]); criminal possession of a firearm (Penal Law § 265.01-b); and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). Respondent was arraigned and his secure remand was continued. The case was adjourned to July 20, 2020, wherein the Honorable Gregory Gliedman held a conference and adjourned the matter to August 4, 2020, in Kings County before the undersigned.

Respondent filed the instant motion to dismiss on July 24, 2020. Corporation Counsel filed opposition to said motion on July 31, 2020. Oral arguments were heard on August 5, 2020, upon which the court reserved decision and adjourned the matter to August 10, 2020, for decision.

On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202 (9 NYCRR 8.202). The order, issued in response to the rapidly escalating COVID-19 public health emergency, stated that "a disaster [was] impending in New York State, for which the affected local governments [would be] unable to respond adequately," and therefore the declaration of "a State disaster emergency for the entire State of New York" was necessary (Executive Order [A. Cuomo] No. 202 [9 NYCRR 8.202]).^[FN2]

On March 20, 2020, the Governor issued Executive Order 202.8 in response to the COVID-19 public health crisis in New York State, which, among other things, tolled all litigation [*4]deadlines and time limitations. Invoking his authority under section 29-a of article 2-B of the Executive Law, the order provided, in relevant part:

"In accordance with the directive of the Chief Judge of the State to limit court operations to essential{**69 Misc 3d at 372} matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020." (Executive Order No. 202.8.)^[FN3]

Two days later, on March 22, 2020, in light of Executive Order 202.8—which Chief Administrative Judge Lawrence K. Marks characterized as "suspending statutes of limitation in legal matters"—Judge Marks directed that, "effective immediately and until further order, no papers shall be accepted for filing by . . . a court in any matter of a type" not deemed essential. (Admin Order of Chief Admin Judge of Cts AO/78/20.) Essential criminal matters were, according to Judge Marks, limited to arraignments, bail applications, proceedings involving temporary orders of protection, resentencings of detained and incarcerated defendants, and "essential sex offender registration act (SORA) matters" (Admin Order of Chief Admin Judge of Cts AO/78/20). Said administrative order follows Governor Cuomo's executive order in an attempt to reduce the spread of COVID-19 by limiting the type of matters that can be filed in the state's court system.

Executive Order 202.8 tolls, until April 19, 2020:

"any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or {**69 Misc 3d at 373}other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof." (Executive Order No. 202.8.)

Issued in "accordance with the directive of the Chief Judge . . . to limit court operations to essential matters during the pendency of the COVID-19 health crisis," Executive Order 202.8 broadly suspends time limits prescribed by, among other things, "the procedural laws of the state" (id.).

Respondent argues that Executive Order 202.8 did not suspend Family Ct Act § 302.2, and therefore the petition must be dismissed. Family Ct Act § 302.2 requires that any "juvenile delinquency proceeding must be commenced within the period of limitation prescribed in section 30.10 of the criminal procedure law or, unless the alleged act is a designated felony as defined in subdivision eight of section 301.2, commenced before the respondent's eighteenth birthday, whichever occurs earlier." By its terms, the scope of Executive Order No. 202.8 clearly includes Family Ct Act § 302.2.

Family Ct Act § 302.2 is clearly within the scope of the executive order. By its plain language, Family Ct Act § 302.2 imposes a statute of limitations, which ordinarily bars the commencement of juvenile delinquency proceedings after a respondent turns 18 years old. If the presentment agency fails to file a juvenile delinquency proceeding within the time period the statute requires them to do it, the respondent is entitled to a dismissal of his petition. Executive Order 202.8 effectively precludes that consequence during a time when the presentment agency was unable to take the steps that Family Ct Act § 302.2 requires.

Interpreting Executive Order 202.8 to encompass Family Ct Act § 302.2 is, moreover, consistent with the Governor's apparent motivations in issuing it. Efforts to slow the spread of COVID-19 have resulted in an unprecedented shutdown of public life. The executive order tolling "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding" prescribed by state procedural laws on account of the COVID-19 pandemic applied to the statute governing the timing of filing a juvenile delinquency{**69 Misc 3d at 374} proceeding under article 3 of the Family Ct Act. (Executive Order No. 202.8.) It is the statute of limitations, which ordinarily bars the commencement of juvenile delinquency proceedings after a respondent turns 18 years old, that was tolled by the executive order and allows for the commencement of the action after the respondent's 18th birthday. The executive order tolled the specific time limit contained within the statute of limitations.

To the extent relevant, the respondent asserts, and the presentment agency agrees, that the executive order cannot toll his age or birth date because it is biologically impossible. However, Family Ct Act § 302.2 imposes a limitation on the amount of time the presentment agency has to file a juvenile delinquency petition and if they fail to file that petition within the prescribed time period, the respondent's case must be dismissed. In this sense, Family Ct Act § 302.2 unquestionably imposes a "specific time limit" for "filing" a juvenile delinquency petition, or the "commencement" of a "juvenile delinquency proceeding." Executive Order 202.8, therefore, tolls that limitation period.^[FN4] The effect of a toll is to stay the running of the statute of limitations during the time that the toll is in effect, and that the statutory period resumes running upon the termination of that toll. In the instant matter, the respondent turned 18 years old in June 2020. The tolling orders, read in conjunction with one another, extend the limitations periods on all [*5]causes of action accrued and accruing before September 4, 2020. Under these executive orders, the period by which the presentment agency had to file the instant juvenile delinquency petition was extended and this juvenile delinquency petition was filed on July 17, 2020, before the expiration date of September 4, 2020, under Executive Order 202.55, and therefore, the instant petition was timely filed.

Contrary to respondent's assertion, the fact that the executive order does not specifically name Family Ct Act § 302.2 is of no significance. To be sure, a suspension order issued pursuant to section 29-a of the Executive Law must "specify the statute, local law, ordinance, order, rule or regulation or part thereof to be suspended and the terms and conditions of the suspension" (Executive Law § 29-a [2] [c]). But Executive Order 202.8 does that, not by listing the name of every statute being suspended, but, instead, by specifying the types of provisions that are the{**69 Misc 3d at 375} subject of the order—namely, New York's "procedural laws" that prescribe "specific time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding" (Executive Order No. 202.8). That, in this court's view, is specific enough to satisfy Executive Law § 29-a (2) (c), since anyone involved in the practice of law should understand which statutory provisions have been tolled by the order (see People ex rel. Hamilton v Brann, 67 Misc 3d 1205[A], 2020 NY Slip Op 50392[U], *1 [Sup Ct, Bronx County, Apr. 2, 2020, Fabrizio, J.] ["The language of (Executive Order 202.8) sweeps up every procedural time limit imposed in the Criminal Procedure Law and packages them in a broad order that is easy for a court to interpret"]).

Furthermore, the instant matter originated in the Youth Part, Supreme Court, and was initially controlled by the Criminal Procedure Law, including CPL 30.10 and 180.80. Respondent's adolescent offender case was pending in the Supreme Court from the end of May until July 15, 2020, when it was transferred to the Family Court. Criminal procedure laws were tolled by the executive order. (See People ex rel. Nevins v Brann, 67 Misc 3d 638 [Sup Ct, Queens County 2020].) It is illogical to argue that the time limits controlling the respondent's case while pending in the Youth Part were tolled by the executive order, but immediately upon the transfer to the Family Court, the case fell outside the bounds of the executive order and the case was subject to already outdated time limits—particularly where both the CPL and the Family Ct Act were expressly referenced, side by side, in the tolling order.

The respondent's alleged possession of a loaded firearm on May 22, 2020, and his 18th birthday in June 2020, both transpired after Governor Cuomo first signed Executive Order 202.8, tolling time limits in both the Criminal Procedure Law and the Family Court Act. In fact, the underlying incident, the respondent's arrest, his 18th birthday, referral, and filing of a juvenile delinquency petition all occurred during the time period when time limits were tolled. Since Executive Order 202.8 specifically tolls time limits prescribed in the Criminal Procedure Law and the Family Court Act, it can be adduced that the statute of limitations for this juvenile delinquency filing is tolled as well.

The court is not addressing the other issues raised in the motion papers, i.e., the intent of the Raise the Age legislation, the respondent's arrest history, etc., as this court's decision{**69 Misc 3d at 376} relies solely on the tolling of the time limits as a result of the Governor's executive orders in response to the COVID-19 pandemic.

Accordingly, it is ordered that respondent's motion to dismiss is denied.