Juveniles on probation who are charged with additional offenses cannot have their probation revoked without a petition from the Department of Probation, supported by non-hearsay allegations, and a full hearing, a unanimous state appellate panel ruled last week, rejecting Family Court judges’ “not unusual” practice of addressing alleged violations of probation through other means.

In Matter of Rayshawn P., 7477A, Appellate Division, First Department, Justice David Friedman (See Profile) wrote on Nov. 29 that the only way to prosecute a violation of probation, or VOP, is under Family Court Act §360, which was made expressly for that purpose, and not through §355, a less stringent, more general statute allowing judges to modify dispositions due to a “substantial change of circumstances.”

He also found that a juvenile on probation cannot be remanded to detention pending a §355 motion. Justices Peter Tom (See Profile), Rolando Acosta (See Profile) and Helen Freedman (See Profile) joined the opinion.

The decision arises from the case of Rayshawn P., who was adjudicated a juvenile delinquent in Bronx Family Court in April 2011 and sentenced to 18 months probation and 50 hours of community service. Rayshawn had admitted to committing an act that would be fourth-degree larceny if committed by an adult.

In July 2011, Rayshawn resisted when police tried to arrest him for punching someone in the face, according to the opinion.

The next day, he appeared before Bronx Family Court Judge Allen Alpert (See Profile). Instead of ruling on a detention application submitted by the detention center that was holding Rayshawn, however, Alpert reopened Rayshawn’s earlier case and, sua sponte pursuant to §355, issued an order for Rayshawn to show cause why his second offense should not be considered a violation of probation, and his probation order should not be revoked or modified. Alpert also issued an order remanding Rayshawn to detention pending resolution of the motion.

In September 2011, following several court appearances, Alpert ultimately modified Rayshawn’s original probation order, extending his probation to 24 months. Rayshawn appealed, arguing that the court had improperly prosecuted the alleged violation of probation using §355 instead of §360, which explicitly deals with violations of probation.

Section 360 requires that, for a violation of probation to be prosecuted, the Department of Probation must file a petition, including a description of “the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred.” It also says that the juvenile is entitled to a prompt hearing on the alleged violation of probation, and that the department’s petition must be supported by non-hearsay evidence.

Rayshawn argued that Alpert had relied only on hearsay and that he had never been given a full hearing with eyewitness testimony.

By the time the case reached the First Department, both sides agreed that Alpert’s orders should be vacated because of certain procedural errors, regardless of whether it was proper to proceed under §355. However, the First Department decided to address the merits rather than vacate the order for procedural reasons, noting it was “not unusual” for Family Court judges to prosecute violations of probation under §355.

“Given that the question of the propriety of this practice is squarely presented by this appeal…we choose to address the more fundamental question,” Friedman wrote.

The panel held that it was not proper to use §355 because “the Legislature has enacted a detailed statutory scheme setting forth procedures specifically intended to address VOPs” in §360.

“Nowhere in these provisions is the court authorized to initiate, sua sponte, proceedings to modify a dispositional order,” Friedman said. “By proceeding against appellant by way of a motion to modify the dispositional order based on ‘a substantial change of circumstances’ under §355.1(1), Family Court effectively circumvented certain procedural requirements of the Legislature’s statutory scheme for prosecutions of VOPs at §§360.1 et seq.”

Specifically, Friedman said, the alleged violation of probation had been prosecuted based on hearsay and without a full hearing.

“Family Court’s decision to proceed against appellant under §355.1(1) for what was essentially an alleged VOP, thereby avoiding the requirements of the statutory scheme for prosecutions of VOPs, was contrary to basic principles of statutory construction,” Friedman said. “It would be illogical for the Legislature to have enacted requirements specifically applicable to the prosecutions of a VOP only to permit a court to circumvent those requirements by addressing an alleged conduct constituting a VOP by moving under §355.1(1), the more general provision permitting the court to revoke or modify its orders based on ‘a showing of a substantial change of circumstances.’”

Rayshawn is represented by Clarie Merkine of the Legal Aid Society.

“We are very pleased with the decision of the Appellate Division. It clarifies that before the Family Court can revoke probation or detain juvenile probationers, it must first strictly follow the procedural and due process safeguards set forth by the Legislature,” Ms. Merkine said in a statement.

Assistant Corporation Counsel Kristin Helmers appeared for the Corporation Counsel’s Office, the presentment agency.

Angela Albertus, chief, Family Court Division of the City Law Department, said in a statement, “We are disappointed the Appellate Division found that the Family Court cannot modify a juvenile’s prior dispositional order based on conduct that would violate his or her probation, particularly when such conduct involves further delinquent or criminal acts.”

@|Brendan Pierson can be reached at bpierson@alm.com.