IN RE: JOSHUA HH.

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

IN RE: JOSHUA HH., Alleged to be a Juvenile Delinquent. Jonathan C. Wool, as Assistant County Attorney, Respondent; Joshua HH., Appellant.

Decided: November 27, 2002

Before:  CARDONA, P.J., CREW III, CARPINELLO, ROSE and LAHTINEN, JJ. Richard Manning, Parishville, for appellant. Jonathan Miller, County Attorney, Malone (Jonathan C. Wool of counsel), for respondent.

Appeal from an order of the Family Court of Franklin County (Lawliss, J.), entered October 30, 2001, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, inter alia, to adjudicate respondent a juvenile delinquent.

On June 5, 2001, respondent appeared before Family Court (McGill, J.) for a fact-finding hearing regarding various property he had purportedly stolen.   He admitted to acts which, if committed by an adult, would have constituted petit larceny and, thus, was adjudicated a juvenile delinquent.   Petitioner indicated at the hearing that he would recommend a term of probation.   Following a series of adjournments, Family Court conducted a dispositional hearing on October 1, 2001 and ordered respondent placed with the Office of Children and Family Services for one year.   Respondent appeals.

Respondent contends that he was not adequately informed by Family Court at the fact-finding hearing about the possible specific dispositions.   Review of the record confirms respondent's contention. Family Ct Act § 321.3(1) requires, in relevant part, that “[t]he court shall also ascertain through allocution of the respondent and his parent or other person legally responsible for his care, if present, that * * * (c) he is aware of the possible specific dispositional orders.”   We have previously held that this “statute's requirements in juvenile delinquency proceedings are mandatory and nonwaivable” (Matter of Florence V., 222 A.D.2d 991, 992, 635 N.Y.S.2d 779).   Failure to follow the statute requires reversal (see id.;  Matter of Herbert RR., 214 A.D.2d 891, 892, 625 N.Y.S.2d 362).   Family Court discussed with respondent only the possibility of probation, which was not the disposition ultimately imposed.   Moreover, although respondent's mother was present in the courtroom, no allocution with her at the fact-finding hearing appears in the record (see Matter of Le Juane S., 247 A.D.2d 481, 482, 668 N.Y.S.2d 708;  Matter of Melvin A., 216 A.D.2d 227, 228, 628 N.Y.S.2d 698).   Hence, Family Court's order must be reversed.

Since respondent reportedly completed, on September 30, 2002, the period of placement pursuant to the order being reversed herein, dismissal of the petition is warranted (see Matter of Timothy M., 225 A.D.2d 915, 916, 639 N.Y.S.2d 182;  Matter of Edgar Q., 185 A.D.2d 432, 433, 585 N.Y.S.2d 633).   In light of our decision, it is not necessary to address respondent's remaining arguments.

ORDERED that the order is reversed, on the law, without costs, and petition dismissed.

LAHTINEN, J.

CARDONA, P.J., CREW III, CARPINELLO and ROSE, JJ., concur.

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