Panel Faults Probation Penalty in Teen Abuse Case

, New York Law Journal

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A teenage boy who forcibly kissed a female schoolmate's face, neck and breasts should not have been sentenced to 12 months' probation, a divided state appeals panel has ruled, finding that he should have been granted an adjournment in contemplation of dismissal because of mitigating circumstances.

The 3-1 Appellate Division, First Department, panel ruled on Tuesday in In re Juan P., 10691, that probation was not the least restrictive alternative available given the nature of the boy's conduct and various mitigating circumstances. Justices David Friedman (See Profile), Rolando Acosta (See Profile) and Judith Gische (See Profile) joined the majority, while Justice Rosalyn Richter (See Profile) dissented.

The incident took place in December 2010, when the boy, Juan P., then 15, and the female complainant, then 14, were walking home from school. Juan repeatedly demanded that the complainant kiss him. She refused and told him to go away because she did not want any trouble.

Juan persisted, pushing the complainant against a wall, lifting her shirt to expose her breasts and kissing her face, neck and breasts. The complainant continued telling him to stop, but he followed her into the elevator of her apartment building, where he again tried to kiss her, at which point she bit his lip. He finally left her alone after she reached her apartment. That evening her mother noticed marks on her neck, and the next day, her father called the police.

Juan was charged with sexual abuse in the first degree, a felony, and forcible touching and sexual abuse in the third degree, both misdemeanors. The felony charge was later dismissed.

According to the majority's opinion, the complainant said during cross-examination that she texted Juan several times following the incident, telling him that she didn't want him to be mad at her, that the case was only happening because of her father and that she wanted to be friends. She also admitted that she texted Juan shortly after the incident that police had come to her apartment that night, though in fact they did not come until the next day.

In June 2012, Bronx Family Court judge Allen Alpert adjudicated Juan a juvenile delinquent and sentenced him to probation with a requirement that he attend a sexual behavior program. Juan, who has since served that sentence, appealed.

The First Department majority found that an adjournment in contemplation of dismissal, or ACD, would have been sufficient, noting that it would have included six months' supervision and "could have been made subject to conditions, such as counseling and educational requirements."

The majority pointed to a number of what it said were mitigating factors, including Juan's perfect school attendance, "exemplary academic record," "strong recommendations from school personnel," "leadership in sports" and "no indication that he has unsavory friends."

The majority noted that Juan had completed the sexual behavior program, where he expressed remorse for his actions. It characterized the incident as an "aberration on the part of an otherwise promising young individual."

It also said that the complainant's cross-examination testimony, while not discrediting her, did raise a question of her credibility.

"If an ACD is not appropriate for this appellant, whose record is unblemished except for this one incident, one wonders whether there is any juvenile charged with misdemeanor sexual abuse who would qualify for an ACD," the panel said, imposing an ACD nunc pro tunc to Juan's sentencing.

Richter, in her dissent, said that the majority minimized the severity of Juan's conduct and should have left the Family Court's determination intact.

"The offense did not consist of a momentary lapse in judgment, but rather was a prolonged attack in which the victim told appellant several times that she did not want to kiss him and made it clear that he should leave her alone," she said.

Juan's actions, she added, "indicate a sense of entitlement and disregard for the rights and well-being of others."

Richter said that Juan's academic accomplishments and participation in sports were not relevant to his behavior, and that he only expressed remorse after entering the court-ordered sexual behavior program, when it was in his interest to do so.

Richter also said the majority was wrong to question the complainant's credibility based on her cross-examination testimony that she continued communicating with Juan and told him she didn't want the case to go forward.

"The complainant was a teenager who may not have wanted to have to relive this incident by prosecuting it, or was concerned about the possible repercussions of having someone she knew, a school athlete who was supposedly her friend, punished based on her reporting of abuse," Richter said. "I find her behavior to be entirely consistent with that of sexual assault victims, especially in cases where the complainant knows her assailant."

The majority briefly addressed that criticism in its opinion, saying that it discussed the cross examination to provide "balance" because "the dissenter insists on publicizing the evidence most favorable to the presentment agency, and only that evidence."

Juan was represented by Raymond Rogers of The Legal Aid Society.

"We're very pleased that the Appellate Division agreed with us that the ACD was appropriate in this case," said Judith Waksberg, director of the appeals unit of Legal Aid's juvenile rights practice. "Family Court is a court of rehabilitation and not a place to punish kids."

The city was represented by former Special Assistant Corporation Counsel Moon Choi, who has since left the office. In a statement the office said, "We are disappointed with the court's decision and believe that Probation was the least restrictive alternative."

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    The moral of the story…play sports, do well in school and you too can sexually assault women!

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