IN RE: KAYLA F.

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

IN RE: KAYLA F., RESPONDENT–APPELLANT. MONROE COUNTY PRESENTMENT AGENCY, PETITIONER–RESPONDENT.

CAF 14–00547

Decided: November 21, 2014

PRESENT:  SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ. BRIAN STRAIT, ATTORNEY FOR THE CHILD, ROCHESTER, FOR RESPONDENT–APPELLANT. MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (BRETT GRANVILLE OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously modified on the facts and the law by substituting for respondent's adjudication as a juvenile delinquent a finding that she is a person in need of supervision and as modified the amended order is affirmed without costs.

Memorandum:  Respondent appeals from an amended order adjudicating her a juvenile delinquent based upon the finding that she committed an act that, if committed by an adult, would constitute the crime of assault in the third degree (Penal Law § 120.00[2] ).   Respondent contends that Family Court abused its discretion in denying her motion pursuant to Family Court Act § 311.4(2) to substitute a finding that she is a person in need of supervision (PINS) for a finding that she is a juvenile delinquent, inasmuch as she demonstrated no danger to the community at large and could have received the same placement under a PINS disposition.   We agree (see Matter of Devon R., 278 A.D.2d 15, 15, lv denied 96 N.Y.2d 707).   A PINS is “[a] person less than eighteen years of age who[, inter alia,] ․ is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child's care” (Family Court Act § 712 [a];  see Matter of Gabriela A., 103 AD3d 888, 889, affd 23 NY3d 155).   Under the circumstances of this case, we conclude that respondent's conduct was consistent with PINS behavior, not with juvenile delinquency (see Matter of Jeffrey C., 47 AD3d 433, 434, lv denied 10 NY3d 707;  see also Matter of Daniel I., 57 AD3d 666, 668).   We therefore modify the amended order by substituting a finding that respondent is a person in need of supervision for the adjudication that she is a juvenile delinquent.   We have reviewed respondent's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court