IN RE: TYLER D.

Reset A A Font size: Print

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

IN RE: TYLER D., Respondent-Appellant. Oswego County Attorney, Petitioner-Respondent.

Decided: July 10, 2009

PRESENT:  CENTRA, J.P., PERADOTTO, GREEN, PINE, AND GORSKI, JJ. Susan B. Marris, Law Guardian, Manlius, for Respondent-Appellant. Richard C. Mitchell, County Attorney, Oswego (James K. Eby of Counsel), for Petitioner-Respondent.

 Respondent, who was adjudicated a juvenile delinquent based upon his commission of an act that, if committed by an adult, would constitute the crime of endangering the welfare of a child, appeals from an order of disposition that, inter alia, placed him on probation under the supervision of the Oswego County Probation Department for two years.   We agree with respondent that his admission to the underlying act was defective based on Family Court's failure to comply with Family Court Act § 321.3(1) by conducting an adequate allocution of his mother (see Matter of Andrew J.S., 48 A.D.3d 1224, 849 N.Y.S.2d 923;  Matter of Sean R.P., 24 A.D.3d 1200, 807 N.Y.S.2d 499, lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1172;  Matter of Brandon M., 299 A.D.2d 966, 750 N.Y.S.2d 548).   Although respondent did not preserve his contention for our review, we note that preservation is not required inasmuch as “[t]he 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).   Thus, the dispositional order is reversed and the fact-finding order is vacated (see Andrew J.S., 48 A.D.3d at 1225, 849 N.Y.S.2d 923;  Matter of Andres S., 34 A.D.3d 1340, 823 N.Y.S.2d 747;  Brandon M., 299 A.D.2d at 967, 750 N.Y.S.2d 548).   Because the period of respondent's placement has not expired, we do not dismiss the petition (cf. Sean R.P., 24 A.D.3d at 1201, 807 N.Y.S.2d 499).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the order entered June 27, 2008 is vacated, and the matter is remitted to Family Court, Oswego County, for further proceedings on the petition.

MEMORANDUM: