Matter of Charles B.

CAROL S. KLEIN, J.

A petition alleging Charles B. to be a juvenile delinquent was filed with this court on March 21, 2003. The complainant in this proceeding is Captain Gisela Westwater, United States Army, Judge Advocate General's Corps, West Point, New York. The petition alleges 15 counts of various violations of the New York Penal Law which occurred on the property of West Point, a military reservation within Orange County. Specifically, respondent is charged with four counts of burglary in the third degree, a class D felony, in violation of Penal Law § 140.20; four counts of petit larceny, a class A misdemeanor, in violation of section 155.25 of the New York State Penal Law; five counts of criminal possession of stolen property in the fifth degree in violation of section 165.40 of the Penal Law; one count of grand larceny in the fourth degree in violation of section 155.30 (1) of the Penal Law; and one count of criminal mischief in the fourth degree in violation of section 145.00 of the New York State Penal Law. It is alleged that the respondent resides on West Point property and is the child of military personnel. The respondent appeared before this court on March 26, 2003 to answer the allegations contained in the petition and entered a denial thereto. On May 16, 2003, respondent filed a motion seeking to dismiss the petition pursuant to Family Court Act § 315.1 on the grounds that this court lacks jurisdiction to adjudicate matters that take place on the West Point Military Reservation.

Respondent argues, in effect, that West Point, as a federal enclave, is under the exclusive jurisdiction of the federal government (i.e., a state within a state) and absent express permission from Congress, Family Court of New York State does not have subject matter jurisdiction. The Orange County Attorney's office, Catherine M. Bartlett, Esq. (Allan Drian, Esq., of counsel) as the presentment agency in juvenile delinquency matters does not address the merits of respondent's motion. Rather, in response to the motion, the agency argues that the motion is defective due to improper service and should be dismissed. The presentment agency argues that the motion, dated May 15, 2003 and made returnable May 20, 2003, is defective since service of the motion was not made in compliance with CPLR 2214.

CPLR 2214 (b) requires that a notice of motion and supporting affidavits be served at least eight days before the time at which the motion is noticed to be heard. Moreover, CPLR 2103 requires that where papers are served by mail, five days are to be added to the prescribed time. As such, in the instant case, the respondent was required to serve the notice of motion and supporting papers upon the presentment agency 13 days prior to the return date if serving by mail and 8 days prior if personally serving. He did not. Service was made by mail, five days prior to the return date. The presentment agency is correct in its response that respondent's motion is defective under CPLR 2214. The penalty for failing to comply with CPLR 2214 is that only papers served in accordance with the provisions of the rule shall be read in support of, or in opposition to, the motion "unless the Court for good cause, shall otherwise direct" (CPLR 2214 [c] [emphasis added]). Clearly, the respondent's motion is defective as to service, however, dismissing the motion on such procedural grounds does not preclude the respondent from making it again. A test of the court's subject matter jurisdiction can be raised at any time. (Robinson v Oceanic Nav. Co., 112 NY 315 [1889].) Dismissing the motion at this time simply delays the inevitable. The court deems this to be good cause for reading and deciding this motion at this time.

Respondent's motion raises a somewhat novel issue, perhaps one of first impression in Orange County, New York. As respondent points out, all of the alleged acts took place on the grounds of West Point, a military reservation in Highland Falls, Orange County, New York. Pursuant to State Law § 22 this property was ceded to the federal government for military purposes under Laws of 1909 (ch 59, eff Feb. 7, 1909). Respondent's position is that, upon ceding the land, the state further ceded jurisdiction relative to that land as well. Effectively, he asserts, that the statute created "a state within a state" to which no New York State laws shall apply. Moreover, respondent concludes New York having ceded jurisdiction over criminal matters to the federal government is without authority to act in this particular case. Once ceded, jurisdiction cannot be reconveyed to the state absent an act of Congress. Respondent cites to what he asserts is an instructive case, People v Hillman (246 NY 467 [1927]), in support of his motion requiring this court to dismiss the petition. In Hillman, the Court of Appeals determined that the County Court of Orange of Kernan, 247 App Div 664 [4th Dept 1936], affd 272 NY 560 [1936]; see also, Reybold v Reybold, 45 AD2d 263 [4th Dept 1974].) Many of the provisions of the New York State Penal Law, which respondent is alleged to have violated, were initially enacted in 1909 but were derived from the Penal Code of 1881. State Law § 22 upon which respondent relies was enacted in 1909. (See, Penal Law § 165.00 et seq.) Arguably, West Point took that property subject to the laws of this state. As a practical matter, and in final consideration of all of the above, should this court decline jurisdiction, respondent would be subject to federal prosecution, either as a juvenile delinquent or tried as an adult as determined by the federal government, under 18 USC § 5032. Such a determination would contravene the intent of the provisions under the Family Court Act particularly as the state has the available programs and services adequate for the needs of juveniles. (Cf., United States v Juvenile Male, 939 F2d 321 [6th Cir 1991].) Now therefore, after due consideration, it is hereby ordered that the respondent's motion is denied in its entirety. [*] New Jersey's court system is broken into three separate levels similar to New York State. The highest court is the Supreme Court, equivalent to the New York State Court of Appeals. The Appellate Division is the next highest court from which appeals from the trial courts are taken.