
    In the Matter of Randy K., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued February 6, 1991;
    decided March 26, 1991
    
      POINTS OF COUNSEL
    
      Robert T. Johnson, District Attorney (Karen Swiger and Peter D. Coddington of counsel), for appellant.
    
      David H. Berman for respondent.
    
      Victor A. Kovner, Corporation Counsel (Pamela Seider Dolgow and Leonard Koerner of counsel), amicus curiae.
    
    
      
      Judith Waksberg and Lenore Gittis for The Juvenile Rights Division of The Legal Aid Society, amicus curiae.
    
   OPINION OF THE COURT

Hancock, Jr., J.

Family Court Act § 340.1 (2) mandates that where, as here, a respondent is not in detention, a fact-finding hearing shall commence not more than 60 days after the conclusion of the initial appearance except as provided in subdivision (4) of the statute. Subdivision (4) permits a court to adjourn a fact-finding hearing on its own motion or on motion of the presentment agency for good cause shown for not more than 30 days. Subdivision (5) provides that the "court shall state on the record the reason for any adjournment of the fact-finding hearing” (Family Ct Act § 340.1 [5] [emphasis added]). Finally, subdivision (6) states that successive motions to adjourn "shall not be granted in the absence of a showing, on the record, of special circumstances” (§ 340.1 [6] [emphasis added]).

In this case, respondent failed to appear at a timely set fact-finding hearing and a bench warrant was issued. Approximately 150 days passed before he was involuntarily returned on the warrant. During that time, the presentment agency made no motion to adjourn the hearing and no adjournment was ever ordered. Accordingly, the court made no statement of the reason for any adjournment on the record. The question in this case is posed by the presentment agency’s argument that the issuance of the bench warrant following respondent’s failure to appear at the first scheduled hearing should have the practical effect of relieving the agency and the Family Court of their obligations to meet the statutory requirements of showing good cause for the initial 30-day adjournment under subdivision (4) (b) and special circumstances for subsequent adjournments under subdivision (6). Stated another way, should respondent’s failure to appear be held to have resulted in a waiver of the requirements under Family Court Act § 340.1 (4), (5) and (6) that adjournments of hearings must be by permission of Family Court on a showing of good cause or special circumstances? The Appellate Division granted respondent’s motion to dismiss the proceeding, concluding that Family Court Act § 340.1 was not satisfied since the agency “did not avail itself of the statutory provisions for obtaining adjournments” (160 AD2d 338, 340). We agree and, accordingly, for reasons stated below, affirm.

I

On February 17, 1988, the presentment agency filed a petition charging that respondent, while aiding another, committed acts which if committed by an adult would constitute the crimes of robbery, first and second degrees. Specifically, the petition alleged that a 13 year old, Jose B., was walking home from school when he was kicked and knocked down by another schoolmate, Joseph B., who held a knife to Jose’s neck. Respondent, also then 13 years old, allegedly ran to the scene and poked Jose’s arm with his own knife. In response to Joseph’s demands, Jose gave Joseph all his money — one dollar and 10 cents. Then Joseph and respondent ran away.

Respondent failed to appear before the court on February 17 and a bench warrant was issued. On May 26, 1988 respondent was brought in on that warrant and made his initial appearance. Family Court set the fact-finding hearing date for July 8, 1988. Again, respondent failed to appear and another bench warrant was issued. On December 5, 1988, the authorities brought respondent to court on the second warrant. Family Court adjourned the matter until December 12, 1988 in order to decide respondent’s omnibus motion and again adjourned the hearing on December 12 because of respondent’s unrelated arrest. The fact-finding hearing was held on January 25, 1989.

Respondent made a motion to dismiss on speedy hearing grounds. At issue was the 150 days between July 8 and December 5, 1988. Family Court denied respondent’s motion to dismiss the petition as violative of the speedy hearing provision concluding that respondent’s "voluntary absence from the court is not in any way chargeable to the People, or to the court”. After the fact-finding hearing, Family Court found that the charges in the petition were sustained. The Appellate Division reversed on the law, and granted respondent’s motion to dismiss the petition. This court granted leave to appeal and we now affirm.

II

Once a juvenile delinquency petition is filed, a respondent is statutorily entitled to a speedy fact-finding hearing (Family Ct Act § 310.2). Section 310.2 is analogous to the general speedy trial provision applicable to adult prosecutions (see, CPL 30.20). But, in addition, the Family Court Act provides, in an entirely separate statute, specific time limitations to govern fact-finding hearings. This section (Family Ct Act § 340.1) has no criminal procedure analogue (cf, CPL 30.30; see, Matter of Frank C., 70 NY2d 408, 412-414). Section 340.1 is "a true 'speedy trial’ provision[.j * * * [B]oth its language and its underlying purpose are directed toward bringing the accused juvenile to trial within [the] specified * * * period * * * [barring] adjournments in the event of 'good cause shown’ or 'special circumstances.’ ” (Matter of Frank C., supra, at 413-414.) In contrast to a criminal prosecution, juvenile delinquency proceedings are civil in nature,, the purpose, in part, being rehabilitation of the child through consideration of the needs and interests of the child (see, Family Ct Act § 301.1; see generally, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 301.1, at 263-267). The speedy hearing provision furthers this purpose by assuring swift and certain determinations of juvenile delinquency proceedings (see, Mem in support of A-7974-A, Bill Jacket, L 1982, ch 920; see generally, People ex rel. Guggenheim v Mucci, 32 NY2d 307).

Obviously, in order to achieve these aims, supervision and monitoring by Family Court are important. Section 340.1 furnishes the mechanism. It sets forth strict time requirements (Family Ct Act §340.1 [1], [2]). These requirements must be met "except as provided in subdivision four” (id.). Subdivision (4) permits a court to adjourn a fact-finding hearing for 30 days for "good cause” shown (§ 340.1 [4]). Successive motions to adjourn may not be granted unless "special circumstances” are shown on the record to exist, and such circumstances shall not include calendar congestion or the status of the court’s docket (§ 340.1 [6]). The court is required to state the reason for any adjournment on the record (see, § 340.1 [5]).

The fact-finding hearing here should have commenced within 60 days of respondent’s May 26, 1988 initial appearance unless a statutory exception applies (§ 340.1 [2]). There is no dispute that the fact-finding hearing was delayed for 150 days without a motion for an adjournment, without an order of adjournment and, accordingly, without any statement on the record for the "reasons for the adjournment” (see, § 340.1 [4]-[6]). The presentment agency argues that, notwithstanding the "technical” noncompliance with the statute, the motion to dismiss should not be granted under these facts because the juvenile did not appear at the timely set fact-finding hearing, a bench warrant was issued for his arrest and these facts would clearly have justified an adjournment for "good cause” and "special circumstances”. Thus, the agency argues that it has demonstrated "special circumstances” as a matter of law and it should not be required to perform the "useless” and "resource-wasting tasks” of seeking successive adjournments.

The agency’s argument, of course, misses the point. The question is not what permission the court might have granted or what findings of good cause or special circumstances it might have made if the motions for adjournments mandated by section 340.1 (4) and (6) had been made. It is certainly possible, even probable, that some adjournments would have been permitted because of respondent’s failure to appear and that the case would have been saved from dismissal. Had the required procedures been followed, it appears unlikely that the matter would have been left to drift untended for approximately five months. The sole question, then, is not what might have happened if the statute had been complied with but what should happen because it was not complied with. Provisions of Family Court Act § 340.1 are mandatory. The Legislature has seen fit to require as a condition for adjourning a hearing that the court must order it and make findings on the record of good cause for the first 30-day adjournment and of special circumstances for subsequent adjournments. The statute contains no exception from these mandates when the juvenile has failed to appear and is being sought under a bench warrant.

At least one lower court, however, has agreed with the agency’s argument (see, Matter of Jerome S., 157 AD2d 286) as would the dissent. While we are not unsympathetic to the agency’s concerns, particularly in light of the reality of a much overworked Family Court system (see, Wachtler, Ch. J., 1990 State of the Judiciary), we nonetheless conclude that creating such an exception would amount to nothing less than an impermissible judicial rewriting of the statute.

Providing for an automatic retroactive adjournment of unlimited duration based solely upon a failure of a juvenile to appear for a hearing and the issuance of a bench warrant would in no way advance the aims of ensuring a swift and certain determination of the proceeding and supervision of the juvenile. Under the rule suggested, until the warrant is executed and the child is returned to court, the presentment agency and the court could do nothing. The proceeding could languish in the docket of Family Court. There would be no sanction. The agency would have no incentive to proceed and the court no responsibility for monitoring the case and inquiring into the reasons for the delay.

Holding that a juvenile’s failure to appear and the issuance of a bench warrant effect an "automatic” adjournment for "special circumstances” would be contrary to the clear mandate of the statute which provides that, except for adjournments based upon the required showing on the record (see, Family Ct Act § 340.1 [2]-[6]), a hearing must be héld within 60 days of respondent’s initial appearance. The proffered rule would interject the notion of "chargeable time” under CPL 30.30 into this Family Court proceeding. Whatever practical purposes may be advanced by the agency’s rule, it would transform Family Court Act § 340.1 into a prosecutorial readiness rule — not a speedy hearing rule. As this Court has emphasized, however, the principles set forth in CPL 30.30, which governs adult criminal proceedings and focuses only on prosecutorial delays, are not to be read into Family Court Act § 340.1. The two statutes have "very different language, history and purposes” (Matter of Frank C., 70 NY2d, supra, at 412). Notábly, the Legislature enacted the strict time requirement of Family Court Act § 340.1 despite expressed concerns with the burdens it would impose on the Family Court system (id., at 414, citing Bill Jacket, L 1982, ch 920, Mem of Office of Court Admin and Mem of Assn of Judges of Family Court of State of NY).

The dissent agrees with the presentment agency that the failures of the agency and the court to comply with Family Court Act § 340.1 may be ignored and the statutory requirements treated as " ’essentially empty act[s]’ ” (see, dissenting opn, at 409). That a failure to make a timely motion should be forgiven because the motion, if made, would have been granted would be a novel and surprising doctrine in any context. Suffice it to say the presentment agency offers no authority to support it and we do not choose to adopt it here in view of the mandatory speedy trial protections that the Legislature has chosen to enact.

The dissent’s arguments in favor of a blanket rule which would permit all time periods following a juvenile’s failure to appear in court to be "charged” to the juvenile are better addressed to the Legislature than adopted by our Court as the basis for an exception which neither the language of the statute nor its history suggests the Legislature ever intended.

In sum, we agree with the Appellate Division that the statutory speedy hearing provision was not satisfied and that this proceeding should be dismissed. Accordingly, the order of the Appellate Division should be affirmed, without costs.

Kaye, J.

(dissenting). The majority concludes that a designated felony petition must be dismissed under Family Court Act § 340.1 because, after respondent failed to appear for the fact-finding hearing and a bench warrant for his arrest was issued, the presentment agency and the Family Court did not calendar and adjourn the case at successive 30-day intervals during the period of his absence. I cannot agree that this result is required by section 340.1 or any other section of the Family Court Act, or indeed by sound considerations of policy, and I therefore must dissent.

There is no question that a juvenile prosecuted under a designated felony petition has a right to a speedy fact-finding hearing. A respondent who has been paroled, like Randy K., is entitled to have that hearing commence not more than 60 days after the conclusion of his initial appearance (Family Ct Act §§ 310.2, 340.1 [2]). Likewise, there is no question that the statutory provisions are intended to assure swift and certain adjudication of delinquency proceedings (Matter of Frank C., 70 NY2d 408, 413).

But those principles, while undisputed, do not answer the question presented by this case: what procedural consequences flow from a respondent’s failure to appear at a scheduled fact-finding hearing and the issuance of a bench warrant?

The statute itself does not answer that question.

Section 340.1 provides that, for a paroled respondent, "the fact-finding hearing shall commence not more than sixty days after the conclusion of the initial appearance except as provided in subdivision four.” (Family Ct Act § 340.1 [2].) Under subdivision (4), the court may adjourn the hearing on its own motion, the presentment agency’s motion, or the respondent’s motion for good cause shown for not more than 30 days (Family Ct Act § 340.1 [4] [a], [b]). Other specific provisions apply when the respondent has committed a homicide or other crime which incapacitated the victim, or where the case is adjourned in contemplation of dismissal (Family Ct Act § 340.1 [4] [a], [c]). The court must state the reasons for any adjournment on the record (Family Ct Act § 340.1 [5]). The court can grant successive adjournment motions only when there is a showing on the record of special circumstances; "calendar congestion or the status of the court’s docket or backlog” may not constitute special circumstances (Family Ct Act § 340.1 [6]).

As seems plain from reading these provisions, together with the Commentary that surrounds the statute, section 340.1 is addressed to delays within the system, and not at all to delays occasioned solely by the respondent’s own flight. As the Appellate Division correctly observed in Matter of Jerome S. (157 AD2d 286, 291): "The adjournment provisions of the statute were intended to function as a means of forestalling unwarranted delay, not as a sword to be employed by a respondent who delays the proceeding and then subsequently argues that it must be summarily dismissed as a consequence.”

Indeed, we have recognized that section 340.1 was intended to address all sources of delay within the system, not just those connected with the presentment agency, and that such delays can justify dismissal of the petition (Matter of Frank C., 70 NY2d, supra, at 414). Our interpretation was premised on the statute’s specific exemption of "calendar congestion or the status of the court’s docket or backlog” from the special circumstances justifying successive adjournments (Family Ct Act § 340.1 [6]). A respondent’s failure to appear is not delay within the system.

Nor does any other provision of article 3 of the Family Court Act indicate that the Legislature considered that it was addressing the procedural consequences of a respondent’s failure to appear, although such a provision might logically have been included in a number of places other than section 340.1 — for example, section 310.2 (providing that a respondent has a right to a speedy hearing); section 312.2 (5) (giving the court authority to issue a bench warrant when a respondent fails to appear); or section 320.5 (3) (authorizing the court to direct detention of a respondent when it finds a substantial probability that he will not return to court on a scheduled date).

The legislative history of article 3 is equally barren of support for the majority’s conclusion. That history indicates that the Legislature’s objective in enacting the law was to codify the substantial changes that had taken place in the decisional law in the 20 years since enactment of the Family Court Act. It was expected that, by so doing, the article would make the law more comprehensible, and thereby assure "the delivery of swift and certain justice in a Family Court juvenile delinquency proceeding” (Mem in support of A-7974-A, Bill Jacket, L 1982, ch 920). There is no reference in the history to the possibility that that expectation might be thwarted by respondents not appearing. The legislation was opposed by both the Office of Court Administration and the Association of Judges of the Family Court of the State of New York on the ground that the time constraints of section 340.1 were unrealistic and would cause hardship. No one mentioned the possibility of dismissal of cases based on a respondent’s failure to appear.

The failure of the Legislature to have considered the absconding respondent is perhaps not surprising. Article 3 was enacted in 1982 (L 1982, ch 920). Not until 1984 did the Legislature adopt a provision specifying that time after a bench warrant has been issued following an adult’s failure to appear in a criminal case is not includable for speedy trial purposes (CPL 30.30 [4] [c]; see also, Bellacosa, 1984 Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 30.30, 1991 Supp Pamph, at 62). Thus, it appears that in 1982, when the relevant provisions of the Family Court Act were enacted, the Legislature had not considered the problem of speedy trial requirements where a bench warrant has been issued in either the adult or the juvenile context.

Lacking any indication that the Legislature did — or does— in fact intend that proceedings should be dismissed in these circumstances, we should resolve the question in light of the purposes of article 3, which are "the needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 301.1).

The majority contends that its interpretation of the statute is a necessary one to protect juveniles like respondent, for otherwise such proceedings could "languish in the docket of Family Court,” with no incentive on the agency’s part to proceed and no responsibility on the court’s part to monitor the case (majority opn, at 404). But the record here paints a quite different picture, and suggests that the majority’s fears are ill founded. This respondent was located twice and brought back to court involuntarily so that the proceeding could go forward.

Nor is a juvenile respondent alone in the system, powerless to prevent a case from languishing. A Law Guardian must be appointed at the initial appearance to represent the respondent throughout the case unless independent legal representation is available (Family Ct Act § 320.2 [2]). While a juvenile may "simply forg[et] about” a court date, as the majority suggests happened here (majority opn, at 403, n 1), the Law Guardian should not permit — and it is part of the Guardian’s function not to permit — the case to languish because of the respondent’s forgetfulness or for any other reason.

Far from advancing the needs and interests of juveniles such as respondent, the rule announced by the majority actually disserves their interests. It seems far less likely that juveniles such as respondent who have already failed to appear once will be paroled pending fact-finding hearings. This case illustrates why. A first bench warrant was issued for respondent after he failed to appear on February 17, 1988, when the designatéd felony petition was filed. Respondent was brought back involuntarily on May 26, arraigned on the petition and paroled again, even though at that point the court could have ordered him held in detention because of his earlier failure to appear (Family Ct Act § 320.5 [3] [a]). Had the court done so, there would have been no speedy trial reason to dismiss the petition. After our decision, Family Court Judges will likely direct detention rather than risk dismissal.

The majority’s assumption that permitting such juveniles to avoid resolution on the merits serves their interests overlooks the purpose behind juvenile delinquency proceedings. Unlike criminal prosecutions, punishment is not a purpose of such proceedings (Family Ct Act §352.1 [2]; § 353.5 [2]; Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 350.1, at 495-497). Family Court Judges have a wide choice of dispositional alternatives designed to serve juveniles’ needs. We have no basis whatever to assume that these alternatives do not do exactly that, and that releasing a respondent because of his own failure to appear is a superior alternative.

Finally, it must be noted that the respondent’s interest is not the only one to be considered here.

The majority opinion imposes upon Family Court a duty to monitor cases where respondents do not appear. How that duty should be discharged is unclear, for the majority fails to specify what steps will satisfy its monitoring requirement. Will it be sufficient for the presentment agency simply to state, at 30-day intervals, that it is continuing efforts to locate the respondent and requires a further adjournment? Such a procedure may rightly be called an "essentially empty act * * * adding paperwork and calendar congestion for little practical effect” (Besharov, 1989 Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 310.2, 1991 Cum Ann Pocket Part, at 69). Or is there now to be a full-scale hearing every 30 days, with Family Court having to hear witnesses and make findings as to whether sufficient efforts have been exerted to locate the respondent? With approximately 3,000 outstanding juvenile warrants in New York City alone, such a requirement should not be lightly implied.

While the majority opinion makes no mention of it, the Family Court Act also mandates that the community’s need for protection be considered in any juvenile delinquency proceeding (Family Ct Act § 301.1). That need is ill served by a rule which permits respondents to evade the law by their own acts or omissions — a rule which, since announced less than a year ago by the Appellate Division, will apparently require dismissal of more than 100 cases (Matter of Miguel B., NYLJ, Feb. 28, 1991, at 26, col 1).

I would reverse the Appellate Division order, and reinstate Family Court’s determination committing respondent to the supervision of the Division for Youth.

Judges Simons, Alexander and Titone concur with Judge Hancock, Jr.; Judge Kaye dissents and votes to reverse in a separate opinion in which Chief Judge Wachtler and Judge Bellacosa concur.

Order affirmed, without costs. 
      
      . Respondent’s counsel here suggests that respondent was living at a known address during the pendency of this proceeding and hypothesizes that this 13-year-old respondent may have simply forgotten about the initial hearing date. Of course, because no adjournment motions were made, the true facts were never developed in the record.
     
      
      . Nor is there any merit to the presentment agency’s argument that giving the speedy hearing requirement (Family Ct Act § 340.1) its intended effect will " 'reward’ a respondent who, as here, voluntarily chose not to appear for his fact-finding hearing, with dismissal of the petition.” (Appellant’s brief, at 17.) It is because the statute was not complied with — not because respondent "eluded capture” — that the petition was dismissed. In any event, as amicus Juvenile Rights Division of the Legal Aid Society of the City of New York notes "there is no record showing that respondent’s absence was in fact 'voluntary’ ” (amicus brief, at 7).
     
      
      . The categorical rule that the presentment agency would have us adopt would apply not only to 13 year olds, but to children as young as 7 years of age (see, Family Ct Act § 301.2 [1] [a]). As amicus Juvenile Rights Division of the Legal Aid Society of the City of New York points out ”[t]here are any number of innocent explanations for a child’s failure to attend a court date, including mere forgetfulness, the inability of a parent to transport and accompany the child to court * * * or a child’s confusion or misunderstanding of court procedures * * *. Once a date has been missed, it is unlikely that a child will know what steps should be taken to arrange for a new date, or even be aware that such action is necessary” (amicus brief, at 7-8).
     
      
      . In its statutory construction argument the dissent maintains that because Family Court Act § 340.1 was enacted in 1982 — two years before the Legislature decided to amend the Criminal Procedure Law to include a specific exception for abscondment (see, CPL 30.30 [4] [c]) from the prosecutorial readiness requirement of CPL 30.30 — we should assume that even though it did not do so, the Legislature intended to write in a similar exception to the speedy hearing provision in Family Court Act § 340.1 (see, dissenting opn, at 408). No precedent or rule of construction is cited to support this argument. Whatever the logic of this reasoning, the argument seems particularly perplexing in view of the fact that twice since 1984 Family Court Act § 340.1 has been amended (L 1985, ch 663; L 1990, ch 223) and the Legislature has not seen fit to write in a similar exception.
     