IN RE: FELIX G. (2008)

Petitioner failed to preserve for our review its contention that Family Court erred in substituting a petition alleging that respondent is a person in need of supervision for its petition alleging that respondent is a juvenile delinquent at the close of petitioner's proof at the fact finding hearing (see generally Matter of Jonathan S., 55 A.D.3d 1324, 865 N.Y.S.2d 180).   We nevertheless review that contention in the interest of justice (see Matter of Yadiel Roque C., 17 A.D.3d 1168, 1169, 793 N.Y.S.2d 857), and we conclude that reversal is required.   Although the court may, with the consent of petitioner, substitute a petition alleging that respondent is a person in need of supervision for a petition alleging that he or she is a juvenile delinquent (see Family Ct. Act § 311.4[1] ), here the court failed to obtain petitioner's consent.   In addition, the court failed to determine at the conclusion of the fact-finding hearing whether respondent committed the acts alleged in the petition (see § 345.1), and the court further erred in ordering that respondent be placed under probation supervision without ordering a probation investigation (see § 351.1[2] ) and then conducting a dispositional hearing (see § 350.1[2] ).

It is hereby ORDERED that the order so appealed from is unanimously reversed in the interest of justice and on the law without costs and the matter is remitted to Family Court, Erie County, for a new hearing on the petition alleging that respondent is a juvenile delinquent.

MEMORANDUM: