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

 Respondent appeals from an order of disposition placing him in the custody of the New York State Office of Children and Family Services for a period of one year.   Respondent contends that his admission to acts that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree was defective because Family Court failed to comply with Family Court Act § 321.3(1) and (2).   We agree.   We note at the outset our disagreement with the Second Department that preservation is required with respect to the contention of a respondent in a juvenile delinquency proceeding that the allocution, and hence the admission, was defective (cf. Matter of Ricky A., 11 A.D.3d 532, 533, 782 N.Y.S.2d 855;  Matter of Brandon S., 305 A.D.2d 609, 610, 759 N.Y.S.2d 370).  “The statute's requirements ․ are mandatory and nonwaivable” (Matter of Florence V., 222 A.D.2d 991, 992, 635 N.Y.S.2d 779;  see Matter of Mary L.M., 5 A.D.3d 1069, 773 N.Y.S.2d 691), and thus preservation is not required.

We agree with respondent that his admission was defective inasmuch as the court failed to advise him of his right to remain silent and to advise him of certain other constitutional rights attendant to a hearing (see Matter of Franklin M., 11 A.D.3d 469, 470, 782 N.Y.S.2d 783;  Matter of Derrick UU., 298 A.D.2d 654, 748 N.Y.S.2d 288;  Matter of Walker, 144 A.D.2d 306, 534 N.Y.S.2d 380).   Further, the court failed to ascertain that respondent and his parents were aware of “all possible dispositional alternatives” (Franklin M., 11 A.D.3d at 470, 782 N.Y.S.2d 783;  see Matter of Joseph P., 229 A.D.2d 318, 645 N.Y.S.2d 468;  Matter of Anthony D., 205 A.D.2d 533, 614 N.Y.S.2d 279;  Matter of Warren R., 197 A.D.2d 920, 604 N.Y.S.2d 863;  cf. Matter of Jermaine J., 6 A.D.3d 87, 92, 775 N.Y.S.2d 287, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665;  Matter of Eric CC., 298 A.D.2d 632, 634, 748 N.Y.S.2d 186).   Also lacking is a statement of the court's reasons for consenting to the entry of the admission (see Family Ct. Act § 321.3[2];  Franklin M., 11 A.D.3d at 470, 782 N.Y.S.2d 783).

Because the period of respondent's placement has expired, the petition must be dismissed (see Matter of James T., 304 A.D.2d 864, 756 N.Y.S.2d 799;  Matter of Tiffany MM., 298 A.D.2d 728, 730, 748 N.Y.S.2d 625;  see also Matter of Mark S. [Appeal No. 1], 144 A.D.2d 1010, 534 N.Y.S.2d 53).

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 petition is dismissed.

MEMORANDUM: