Defendant has been indicted by the Grand Jury of Bronx County for crimes allegedly committed against his infant son, namely, assault in the second degree (Penal Law, § 242), and endangering the life or health of a child (§ 483).
Article 8 of the Family Court Act creates a civil proceeding for dealing with "family offenses." The jurisdictional statement, which also defines such offenses, is found in section 812, as follows: "The family court has exclusive original jurisdiction, subject to the provisions of section eight hundred thirteen, over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household. For purposes of this article, `disorderly conduct' includes disorderly conduct not in a public place."
The act anticipates that a family offense may initially give rise to a "criminal complaint," and provision is made in section 813, quoted in the note,
The sense in which the term "exclusive original jurisdiction" is used in the Family Court Act is set forth in section 114 as follows: "When used in this act `exclusive original jurisdiction' means that the proceedings over which the family court is given such jurisdiction must be originated in the family court in the manner prescribed by this act. The provisions of this act shall in no way limit or impair the jurisdiction of the supreme court as set forth in section seven of article six of the constitution of the state of New York." The cautionary last sentence finds its genesis in section 13 of article VI of the State Constitution. That section, which establishes the Family Court and prescribes its jurisdiction, concludes with the following subdivision: "d. The provisions of this section shall in no way limit or impair the
Section 7 of Article VI of the Constitution defines the jurisdiction of the Supreme Court.
The conclusion that the Supreme Court has jurisdiction, however, does not necessarily mean that it must retain it in preference to the Family Court. That it must is contingent on whether its jurisdiction is exclusive or is concurrent with that of the Family Court. Only if exclusive does the Constitution bar a transfer.
It has been suggested that, "while the Constitution empowers the Legislature to grant the Family Court in the City of New York jurisdiction over `crimes and offenses by or against minors or between spouses' (N. Y. Const., art. VI, § 7, subd. a), the Supreme Court still remains with `exclusive jurisdiction over crimes prosecuted by indictment' (N. Y. Const., art. VI, § 7; § 13, subd. d)." (People v. Radison, 40 Misc.2d 1063, 1064.) This reading of the New York City clause, in our opinion, excessively restricts the power of the Legislature. Before the adoption of the recent constitutional amendments establishing a unified court system for the State, trial of crimes prosecuted by indictment, although within the jurisdiction of the Supreme Court throughout the State, as a matter of practice and acceptance, in New York City constituted the business of the Court of General Sessions of New York County and the County Courts of the other four counties in the city; outside the city indictments were generally tried in County Courts. The amendments abolished the five courts functioning in the city (N. Y. Const. art. VI, § 35, subd. a; see Code Crim. Pro. § 50), but the County Courts outside the city were continued (N. Y. Const. art. VI, § 10; see Code Crim. Pro., § 39). Within the City of New York, in consequence, the Supreme Court was alone left with jurisdiction over crimes prosecuted by indictment. The New York City clause so states, with, to repeat, the reservation set forth in the proviso which authorizes the Legislature to grant jurisdiction also (1) with respect to misdemeanors prosecuted by indictment, to the city-wide court of criminal jurisdiction, and (2) with respect to "crimes and offenses" involving minors
We think it also clear that the Legislature has exercised its power by enactment of the Family Court Act, which "applies in all counties of the state of New York" (§ 112) and contains provisions expressly addressed to the City of New York (e.g., §§ 121-126). There can be little question, in the face of sections 812 and 813 above quoted and the policy declaration in section 811,
Although the Supreme Court may not be divested by statute of its constitutionally derived jurisdiction (Matter of Malloy, 278 N.Y. 429, 432; Barone v. Ætna Life Ins. Co., 260 N.Y. 410, 414), "it need not exercise it if the legislature has given to other tribunals the requisite jurisdiction" (Matter of Runk, 200 N.Y. 447, 460; cf. Noll v. Ruprecht, 256 App. Div. 926, affd. 282 N.Y. 598; 1 Jessup-Redfield Surrogates' Law and Practice, §§ 56, 82, 112, 113; and see the constitutional provision quoted in note 3 herein). In the matter at bar the Legislature has given the requisite jurisdiction to the Family Court, not merely in general terms, but has plainly expressed its desire that the Family Court have priority of examination into family offenses, and has formulated a procedure for enforcement of the priority, as well as for surrender of jurisdiction where appropriate. We see no reason, in the absence of extraordinary circumstances not readily envisioned, for the Supreme Court to deviate from the procedure or to withhold adherence to the legislative view that the Family Court is a more suitable instrument for dealing with domestic discord signaled by disorderly conduct or assault. It is not to be overlooked that an order by the Family Court denying transfer of a family offense proceeding to the Supreme Court or any other "appropriate criminal court" is subject to review by the Appellate Division of the Supreme Court (Family Ct. Act, § 1012).
The instant indictment charges a shocking offense — that defendant placed his two-year-old son on a hot stove. The court thought, understandably, transfer of the case to the Family Court would be futile, believing it would undoubtedly be returned for criminal processing. But whether remedies
The record filed on this appeal does not reveal the nature of the proceedings prior to indictment. If defendant was arraigned in the New York City Criminal Court and ordered held for the Grand Jury, we agree that the matter instead "should have been transferred to Family Court at the time of the arraignment" (People v. De Jesus, 21 A.D.2d 236, 240, supra). However, as far as the relationship between Supreme Court and Family Court is concerned, we think that when a putative family offense comes to the attention of the District Attorney, he has power to bring it before the Grand Jury, instead of either the Criminal Court or the Family Court, and the Grand Jury has power to find a valid indictment (but cf. People v. De Jesus, supra, and People v. Pieters, 26 A.D.2d 891, both Fourth Department cases primarily involving the relationship between County Courts and Family Court and which seem to carry contrary implications). The discussion is in terms of power, not in terms of the wisdom of exercising it. With District Attorney and Grand Jury both aware that the matter will in ordinary course be transferred to the Family Court, referral to the Grand Jury may become unlikely. But the jurisdiction granted the Supreme Court to inquire, by the intervention of a Grand Jury, of all crimes committed in the county (Code Crim. Pro., § 22) is not inconsistent with the purposes of the Family Court Act, which requires that a family offense be charged, in the Family Court or a criminal court, before the procedures of the act begin to function. As pointed out in note 5 herein, the act does not curtail the powers of the Grand Jury. In sum, the power to indict for a family offense may be seldom invoked, but it exists; and the possibility of its usefulness in the infrequent situation should not be foreclosed.
Retention by the Supreme Court of a family offense proceeding, on the theory that as such it can be handled in that court by the exercise of Family Court Act powers, might conceivably imply that a Supreme Court Justice could accept a family offense case and then transfer it to himself or some other Supreme Court Justice acting in their criminal court capacity. But in any event, we would generally not look with favor upon the retention by the Supreme Court of a family offense proceeding originating in that court. Evidently the Legislature regarded the Family Court as better designed and hopefully better equipped with the requisite auxiliary services to cope with such problems within the same family complex; and in the event of an abuse of discretion, the People, through the District Attorney, are better able to correct abuses through appeal than most litigants in comparable situations.
The Family Court, of course, should exercise its discretion in making the transferability determination in accordance with the guidelines set out in section 811 of the Family Court Act. The family as a unit can often be preserved as a unit by treating a family offense as an element of a possibly salvageable over-all problem rather than by bringing an individual male-factor to book in a criminal court. To deal with the entire situation, which may affect critically the lives of several individuals, is the unique and specialized function entrusted primarily, as we see it, to the Family Court.
The judgment of conviction should be reversed on the law and the facts, the matter transferred to the Family Court, and
I concur completely in the opinion of Presiding Justice BOTEIN. In view of the dissent I wish to emphasize what Judge BOTEIN has expressed, that the orderly administration of cases involving family offenses will be better advanced in accordance with the legislative intent by requiring that all such cases be presented first to the Family Court. In the absence of precise legislative standards establishing a clear line of demarcation between cases which must be retained in Family Court and the extreme ones which very likely should not be so retained, it seems best to have the courts develop the line on an ad hoc basis. If the District Attorney has reason to believe that Family Court should not retain a case but should send it to the Supreme Court for disposition under the applicable criminal laws, he may present his argument to such effect to the Family Court; and if the ruling is adverse, he may take an appeal. In this manner the intent of the Legislature may best be achieved. The jurisdiction of the Supreme Court is thus not questioned; but, as has been found expedient with respect to Surrogate's Court problems (Noll v. Ruprecht, 256 App. Div. 926, affd. 282 N.Y. 598) the Supreme Court will decline to exercise its jurisdiction where the facilities of Family Court are found to be better suited to handle a particular case; and only in the exceptional family case, where Family Court, in its sound discretion, finds the case to be beyond the reach of its beneficial services, will the case be remitted for disposition in accordance with applicable criminal laws.
CAPOZZOLI AND McNALLY, JJ. (dissenting).
The Supreme Court is a court of original and unlimited jurisdiction. Concededly, it had the power to accept the plea to assault in the third degree in satisfaction of the indictment which charged assault in the second degree (Penal Law, § 242) and endangering the life and health of a child (Penal Law, § 483). We find no abuse of discretion in its so doing, especially in a case such as this, which, on its face, does not present a classical family dispute. Consequently, we would affirm the conviction.
Judgment of conviction reversed, on the law and on the facts, and the matter transferred to the Family Court of the State of New York, Bronx County, and further prosecution of the indictment stayed pending the Family Court proceedings.
"(b) The phrase `criminal complaint' as used in this article includes an information."
"The family court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a particular case, it is authorized to transfer the proceeding to an appropriate criminal court."
We do not regard the provisions of the Family Court Act relating to family offenses as curtailing the powers of the Grand Jury (but, see, People v. Johnson 44 Misc.2d 1075, affd. 27 A.D.2d 547, supra), which, it is recognized, may not be done "in the absence of a clear constitutional or legislative expression" (People v. Stern, 3 N.Y.2d 658, 661). An indictment is accusatory process (Code Crim. Pro., § 247; see People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 391); if the charge of crime it contains is judicially disposed of in accordance with a procedure sanctioned by the Legislature, no curtailment of the power to accuse would seem involved.