
    In the Matter of Nakia L., a Person Alleged to be Juvenile Delinquent, Appellant.
    Argued February 17, 1993;
    decided April 1, 1993
    
      APPEARANCES OF COUNSEL
    
      Patricia S. Constantikes, New York City, Carol Goldstein and Lenore Gittis for appellant.
    
      O. Peter Sherwood, Corporation Counsel of New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

A delinquency petition was filed against respondent on May 21, 1989, alleging that he committed acts which, if done by an adult, would have constituted attempted robbery and attempted assault. As required by Family Court Act § 340.1 (2), a fact-finding hearing was scheduled to take place within 60 days of his initial appearance. However, on July 18th, respondent requested that the fact-finding hearing be adjourned beyond the 60-day period because his attorney had to see his doctor. The hearing court granted the adjournment request pursuant to Family Court Act § 340.1 (4) after determining that there was "good cause”.

The case was adjourned until August 8, 1989 — 79 days after respondent’s initial appearance. On that day, the presentment agency was unable to locate a complaining witness. After attempting to track the witness down, the agency admitted to the court that it had no explanation for the witness’s absence and asked the court for another adjournment. Despite a finding that the agency had not established "good cause”, the hearing court granted the request and adjourned the matter for two days. On August 10, the complaining witness appeared and the fact-finding hearing was held. The court thereafter adjudicated respondent a juvenile delinquent and placed him with the New York State Division of Youth for 18 months.

Pursuant to Family Court Act § 340.1 (4), the hearing court may, "for good cause shown,” grant an adjournment beyond the original 60-day period for up to 30 days. However, "[successive motions to adjourn a fact-finding hearing shall not be granted in the absence of a showing, on the record, of special circumstances” (Family Ct Act § 340.1 [6]). Respondent contends that, because an adjournment was granted on July 18th, the August 8th request for an adjournment constituted a "successive motion[ ]” requiring "special circumstances” which were lacking in this instance. We agree.

The Appellate Division concluded that good cause for the adjournment granted on August 8th was shown and that there was no need to establish "special circumstances” for the adjournment because the July 18th and August 8th adjournment requests were not made by the same party and therefore were not "successive.” Alternatively, the Appellate Division reasoned that section 340.1 (6)’s requirement of "special circumstances” applies only when 90 days have passed since a respondent’s initial appearance. We find no support in the statute for that interpretation.

The statute states unambiguously that a court may adjourn the fact-finding hearing beyond the 60-day period for up to 30 days for "good cause shown” (Family Ct Act § 340.1 [4]). Any adjournment request made thereafter by either party, i.e., a successive motion, shall be granted only upon a showing of special circumstances. That the successive adjournment requests are not made by the same party or are made within 90 days of a respondent’s initial appearance is irrelevant (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 340.1, at 437). As we have stated previously, a hearing court must "make findings on the record of good cause for the first 30-day adjournment and of special circumstances for subsequent adjournments” (see, Matter of Randy K., 77 NY2d 398, 403 [emphasis added]; see also, Matter of Aaron J., 80 NY2d 402, 405). Here, the hearing court failed to find special circumstances justifying the subsequent adjournment.

Furthermore, contrary to the dissent’s position, we conclude that there were no special circumstances warranting further adjournment. The requirement of "special circumstances” entails a more exacting standard than that of "good cause” (see, Matter of Frank C., 70 NY2d 408, 414) and notably, the hearing court found that the presentment agency had failed here to meet even the more lenient "good cause” standard. Thus, the agency admitted that it had no explanation for the nonappearance of the complaining witness and the court noted that the witness had failed to appear on previous occasions. Because the statute is concerned with the speedy resolution of charges against juveniles, the fact that the presentment agency was not to blame for the witness’s absence is not a factor for consideration (see, Matter of Frank C., 70 NY2d, at 413-414, supra), and nothing before the hearing court warranted a successive adjournment based upon "special circumstances” (see, Matter of Vincent M., 125 AD2d 60, affd 70 NY2d 793). Thus, the court’s grant of an adjournment on August 8th was improper and the proceeding should be dismissed.

Smith, J.

(dissenting in part). Family Court Act § 340.1 sets forth the time limits applicable to a juvenile delinquency fact-finding hearing. If, as in the case at bar, the respondent is not in detention, "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]). Relevant to this case, the hearing for such a respondent may be adjourned on motion of "the presentment agency” or "respondent for good cause shown for not more than thirty days” (Family Ct Act § 340.1 [4] [a], [b]). "Successive motions to adjourn a fact-finding hearing shall not be granted in the absence of a showing, on the record, of special circumstances; such circumstances shall not include calendar congestion or the status of the court’s docket or backlog” (Family Ct Act § 340.1 [6]).

Given these statutory directives, we have properly concluded in this case that "the August 8th request for an adjournment constituted a 'successive motion[ ]’ requiring 'special circumstances’ ” (majority opn, at 901), pursuant to Family Court Act § 340.1 (6). However, because sufficient facts appear on the record to raise the question of special circumstances, I would remand the matter to the Appellate Division for a determination of that issue, allowing the adjudication of juvenile delinquency to remain in the interim. Therefore, I dissent in part.

By the presentment agency’s petition, respondent was charged with the following acts which would be crimes if respondent were an adult: attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]), attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]), attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]), attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]), attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30 [5]), and assault in the third degree (Penal Law § 120.00 [l]). At the trial, the complainant testified that she and her husband were accosted in an elevator by two males who demanded their money. One of the perpetrators was armed. She identified respondent as the person who initially had the gun. She further testified that when her husband refused to cooperate, respondent gave the gun to his accomplice and then proceeded to beat the husband. The other perpetrator subsequently struck the complainant in the head with the gun as she attempted to flee. The husband did not testify and the Law Guardian rested without presenting any evidence. The trial court found that the presentment agency had established attempted robbery in the second degree (two counts) and attempted assault in the third degree beyond a reasonable doubt.

Having concluded that the August 8th adjournment was permissible only under special circumstances, the issue becomes whether the unexplained absence of the complainant constituted a special circumstance warranting a brief two-day adjournment. Special circumstances must be determined on a case-by-case basis (Matter of Frank C., 70 NY2d 408, 414). The record indicates that special circumstances may exist.

First, the complainant was the presentment agency’s chief witness. The absence or unavailability of the chief witness in any case, civil or criminal, often occurs and generally a brief adjournment is granted to obtain his or her presence. On August 8th, the presentment agency’s counsel stated that the complainant indicated that she was on her way to court and that others at her home subsequently confirmed that the complainant had departed for court. Given this information, it appears reasonable to grant a two-day adjournment to ascertain what transpired and secure complainant’s presence in court.

Second, this complainant was conversant only in Cantonese and the language barrier may have played some part in her absences. In fact, on one prior occasion, May 24, 1989, complainant’s husband and perhaps the complainant (the record is unclear) appeared in the afternoon. On another occasion, July 18, 1989, the complainant was told by telephone not to appear at court.

Third, since the pending charges were serious, a disposition on the merits was preferable and in the best interests of the respondent and the community. Only a two-day adjournment was at issue.

Based upon the foregoing, consideration of whether special circumstances existed is clearly warranted.

Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur in memorandum; Judge Smith dissents in part in an opinion in which Judge Bellacosa concurs.

Order reversed, etc. 
      
       Section 340.1 (4) provides that "[t]he court may adjourn a fact-finding hearing * * * on motion by the respondent for good cause shown for not more than * * * thirty days if the respondent is not in detention”.
     
      
      . Prior to trial, the counts charging attempted robbery in the first degree and attempted assault in the second degree were withdrawn because no weapon was recovered.
     
      
      . On this appeal, the granting of the second adjournment on August 8th, not the sufficiency of the evidence, is at issue.
     