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IN RE: JULIAN O., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: January 25, 2011

SAXE, J.P., MOSKOWITZ, RICHTER, MANZANET-DANIELS, ROMÁN, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Larry A. Sonnenshein of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Nancy M. Bannon, J.), entered on or about July 20, 2010, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him on probation for 12 months, unanimously reversed, as an exercise of discretion in the interest of justice, without costs, the finding of juvenile delinquency and term of probation vacated, and the matter remanded with the direction to order an adjournment in contemplation of dismissal pursuant to Family Court Act § 315.3(1).

The court improvidently exercised its discretion when it imposed a juvenile delinquency adjudication with a term of probation, because this was not “the least restrictive available alternative” (Family Ct Act § 352.2[2][a] ). Instead, a supervised ACD would adequately serve the needs of appellant and society (see e.g. Matter of Jeffrey C., 47 AD3d 433 [2008], lv denied 10 NY3d 707 [2008]; Matter of Justin Charles H, 9 AD3d 316 [2004] ). The underlying offense did not involve injuries or weapons. This was appellant's first offense, and he had no history of behavioral problems. He was generally doing well at school, and had a very favorable report from a work-study program in which he participated. Appellant had been removed from his mother at a young age, and he spent many years in difficult foster care situations before being returned to his home. However, under all the circumstances, appellant's troubled family background did not warrant a finding of juvenile delinquency, particularly since he had made significant progress in overcoming the effects of that background.