IN RE: THOMAS B.

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THOMAS B., Respondent-Appellant. Wayne County Attorney, Petitioner-Respondent.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, PINE, AND GORSKI, JJ. Robert A. Dinieri, Law Guardian, Clyde, for Respondent-Appellant. Daniel M. Wyner, County Attorney, Lyons (Daniel C. Connors of Counsel), for Petitioner-Respondent.

 Respondent was on probation based on an order adjudicating him to be a juvenile delinquent and now appeals from an order that placed him in the custody of the Commissioner of Social Services of Wayne County as a result of his second violation of probation.   Respondent failed to preserve for our review his contention that Family Court acted as an advocate for the presentment agency at the violation of probation hearing (see Matter of Aron B., 46 A.D.3d 1431, 847 N.Y.S.2d 498).   Nevertheless, we review that contention in the interest of justice, and we conclude that the court improperly “ ‘assumed the appearance of an advocate’ ” when it reminded the presentment agency to have a certain witness make an in-court identification of respondent (Matter of Yadiel Roque C., 17 A.D.3d 1168, 1169, 793 N.Y.S.2d 857).   We further conclude, however, that the error is harmless because a previous witness had identified respondent as the person involved in the violation.   Respondent also failed to preserve for our review his contention that he should have received prior notice of out-of-court identifications and an out-of-court statement made by him (see generally Aron B., 46 A.D.3d 1431, 847 N.Y.S.2d 498).   In any event, that contention lacks merit.   A probation violation hearing should be “ less formal than a full fact-finding hearing with the prerequisites of formal discovery and notice” (Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 360.3, at 456).   Furthermore, any notice requirement would not apply because the identification was arranged by respondent's school rather than by the police, and respondent's incriminating statement was made to an agent of the school, not to the police (see Matter of Andy F., 34 A.D.3d 581, 582, 825 N.Y.S.2d 228;  Matter of Gilbert C., 15 A.D.3d 172, 788 N.Y.S.2d 603;  see also Matter of Jerome H., 15 A.D.3d 247, 788 N.Y.S.2d 856).   Finally, we conclude on the record before us that, viewed in its totality, the representation provided by respondent's attorney was meaningful (see Matter of Julies R., 250 A.D.2d 855, 673 N.Y.S.2d 710).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: