IN RE: JONATHAN C. (2008)

Order, Family Court, Bronx County (Monica Drinane, J.), entered on or about August 16, 2006, which denied appellant's motion to vacate an order of disposition, same court and Judge, entered on or about April 22, 2005, which adjudicated him a juvenile delinquent upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of sexual abuse in the first, second and third degrees, and forcible touching, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously reversed, as a matter of discretion in the interest of justice, without costs, the motion granted, the juvenile delinquency adjudication vacated, and the matter remanded for new fact-finding and dispositional hearings before a different Judge.

Appellant, whose order of disposition has already been affirmed by this Court (29 A.D.3d 386, 814 N.Y.S.2d 616 [2006] ), moved, pursuant to Family Court Act § 315.2 and § 355.1, to vacate the order of disposition and dismiss the petition on the ground that, after a separate, subsequent fact-finding hearing, the same Judge who presided over appellant's hearing dismissed the petition against the three juveniles with whom appellant allegedly acted in concert in sexually abusing the victim.   While it is generally no defense to a prosecution based on accessorial liability that a co-actor “has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof” (Penal Law § 20.05[2];  see also Matter of Khaliek W., 193 A.D.2d 683, 684, 598 N.Y.S.2d 29 [1993] ), we find, under the facts presented herein, that a substantial change in circumstances exists and that appellant should be granted a new fact-finding hearing at which he would be given the opportunity to elicit impeaching testimony introduced at the other three juveniles' hearing (see Family Court Act § 355.1).