IN RE: Ramon H.-T. (Anonymous)

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

IN RE: Ramon H.-T. (Anonymous), appellant.

2010–09588 (Docket No. S–6791–08)

Decided: September 27, 2011

MARK C. DILLON, J.P. DANIEL D. ANGIOLILLO THOMAS A. DICKERSON JEFFREY A. COHEN, JJ. Dawn M. Shammas, Harrison, N.Y., for appellant. James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel), for respondent.

Submitted—September 6, 2011


In a proceeding pursuant to Family Court Act article 7, Ramon H.-T. appeals from an order of fact-finding and disposition of the Family Court, Dutchess County (Forman, J.), dated August 12, 2010, which, upon an order of adjournment in contemplation of dismissal of the same court dated June 23, 2009, made upon his admission to truancy, and upon an order of the same court dated March 15, 2010, restoring the matter to the calendar, adjudged him to be a person in need of supervision and directed that he be placed in the custody of the Dutchess County Commissioner of Social Services for a period of up to 12 months.

ORDERED that the order of fact-finding and disposition is reversed, on the law, without costs or disbursements, and the proceeding is dismissed.

On June 23, 2009, the appellant, an alleged person in need of supervision, admitted to truancy, and the Family Court, on the appellant's consent, entered an order on that date adjourning the matter in contemplation of dismissal until December 23, 2009.   The Family Court directed, in the same order, that the matter be restored to the calendar prior to the six-month expiration date on December 23, 2009, and then adjourned in contemplation of dismissal for an additional four-month period with supervision.  “An adjournment in contemplation of dismissal is an adjournment of the proceeding, for a period not to exceed six months with a view to ultimate dismissal of the petition in furtherance of justice ․ Upon application of the petitioner, or upon the court's own motion, made at any time during the duration of the order, the court may restore the matter to the calendar.   If the proceeding is not so restored, the petition is at the expiration of the order, deemed to have been dismissed by the court in furtherance of justice” (Family Ct Act § 749[a] ).

As a general rule, “points which were not raised at trial may not be considered for the first time on appeal” (People v. Thomas, 50 N.Y.2d 467, 471).   A narrow exception to this rule exists where a court issues an unauthorized or unlawful sentence (cf.  People v. Samms, 95 N.Y.2d 52, 55–57;  People v. Fuller, 57 N.Y.2d 152).   Here, although the appellant did not object to the order dated June 23, 2009, we permit him to argue for the first time on appeal the propriety of that order, as well as an order dated March 15, 2010, restoring the matter to the calendar, as the argument involves the legality of those orders and the Family Court exceeding its statutory authority (cf.  People v. David, 65 N.Y.2d 809;  People v. Fuller, 57 N.Y.2d 152;  People v. Lopez, 28 N.Y.2d 148, 152).

In the order dated June 23, 2009, the Family Court clearly determined that the appellant required a period of supervision longer than six months.   Thus, the entry of an adjournment in contemplation of dismissal (hereinafter ACD) was not a viable option (see Matter of Melissa B., 49 AD3d 536, 537).   Moreover, while the six-month ACD period expired on December 23, 2009, the first and only application to restore the matter to the calendar was made on March 12, 2010, nearly three months after the expiration of the adjournment period, and the matter was restored to the calendar three days later in the order dated March 15, 2010.   Therefore, as the case was not restored to the calendar within the requisite six-month time period, any subsequent action by the Family Court, including the issuance of the order of fact-finding and disposition, was a nullity (see Matter of Traneil B., 43 AD3d 1302, 1302, 1303;  Matter of Cleveland R., 14 AD3d 568, 569;  Matter of Kenyetta D., 188 A.D.2d 830, 831).

Accordingly, the Family Court should have deemed the petition to have been dismissed in furtherance of justice (see Family Ct Act § 749[a] ).

The remaining contentions either are without merit or have been rendered academic by our determination.



Matthew G. Kiernan

Clerk of the Court

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