Niagara County Attorney, Petitioner-Respondent. v. << (2005)

 Respondent appeals from an order adjudicating her to be a juvenile delinquent and placing her in the custody of the New York State Office of Children and Family Services for a period of 18 months.   We agree with the contention of respondent that she was denied her constitutional right to be present at the fact-finding hearing.   It is well established that respondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings (see U.S. Const. 6th Amend.;  N.Y. Const., art. I, § 6;  Family Ct. Act § 341.2[1] ).   They may, however, waive the right to be present at such proceedings (see Matter of Hand, 129 Misc.2d 810, 812, 494 N.Y.S.2d 642;  Matter of Leroy B., 120 Misc.2d 590, 591 n. 1, 466 N.Y.S.2d 556;  see generally People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313;  Matter of Anthony B., 43 A.D.2d 688, 689, 350 N.Y.S.2d 426).  “In order to effect a voluntary, knowing and intelligent waiver, the [respondent] must, at a minimum, be informed in some manner of the nature of the right to be present at [the fact-finding hearing] and the consequences of failing to appear” for that hearing (Parker, 57 N.Y.2d at 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313;  see People v. Campbell, 209 A.D.2d 1042, 619 N.Y.S.2d 917).   Here, respondent was advised of her “duty” to be present, but she was not advised of her “right” to be present, or of the consequences of her failure to appear.  “Thus, it cannot be said that [respondent] voluntarily and knowingly waived [her] right to be present” at the fact-finding hearing (People v. McGee, 161 A.D.2d 1195, 1195, 555 N.Y.S.2d 527, lv. dismissed 76 N.Y.2d 861, 560 N.Y.S.2d 1001, 561 N.E.2d 901;  see Campbell, 209 A.D.2d 1042, 619 N.Y.S.2d 917).   We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition.

Based on our determination, we need not address respondent's remaining contentions.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Niagara County, for further proceedings on the petition.

MEMORANDUM: