IN RE: DWAYNE J.R.

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

IN RE: DWAYNE J.R., JR., Respondent-Appellant. Chautauqua County Attorney, Petitioner-Respondent.

Decided: March 27, 2009

PRESENT:  MARTOCHE, J.P., CENTRA, CARNI, AND GORSKI, JJ. Lyle T. Hajdu, Law Guardian, Lakewood, for Respondent-Appellant. Stephen M. Abdella, County Attorney, Mayville (Scott F. Harley of Counsel), for Petitioner-Respondent.

Respondent appeals from an order adjudicating him to be a juvenile delinquent based on the finding that he committed an act that, if committed by an adult, would constitute the crime of murder in the second degree (Penal Law § 125.25[1] ).   Family Court conducted a dispositional hearing and determined that petitioner established by a preponderance of the evidence that respondent required a restrictive placement (see Family Ct. Act § 353.5[1] ).   We reject respondent's contention that the court abused its discretion in failing to order a less restrictive placement (see Matter of Christopher QQ., 40 A.D.3d 1183, 1184, 834 N.Y.S.2d 741).   The court properly considered the background of the 14-year-old respondent;  his need for intensive psychotherapy, supervision and educational services;  the particularly brutal and violent nature of the murder;  the need for the protection of the community in light of the unexpected nature of respondent's actions;  and the willing participation of respondent in the murder of the 18-year-old victim, whom he did not know (see § 353.5[2];  Christopher QQ., 40 A.D.3d at 1184, 834 N.Y.S.2d 741;  Matter of Lamar J.F., 8 A.D.3d 1091, 778 N.Y.S.2d 369).   Inasmuch as the court determined that a restrictive placement was warranted and that respondent committed an act that, if committed by an adult, would constitute a class A felony, the court properly ordered an initial placement in the custody of the New York State Office of Children and Family Services for a period of five years (see § 353.5[4][a][i] ), and did not abuse its discretion in directing that respondent initially be confined in a secure facility for a period of 18 months (see § 353.4[a] [ii] ).   We note that the court reduced the initial period of secure confinement by the period of time respondent spent in juvenile detention, which was approximately three months.

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

MEMORANDUM: