IN RE: ELIJAH X.

Reset A A Font size: Print

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

IN RE: ELIJAH X., a Juvenile Delinquent. Matt Graber, as Rensselaer County Probation Officer, Respondent; v. Elijah X., Appellant.

527346

Decided: October 17, 2019

Before: Garry, P.J., Lynch, Mulvey and Devine, JJ. Sandra M. Colatosti, Albany, for appellant. Carl J. Kempf, III, County Attorney, Troy (Kelly Cramer of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from an amended order of the Family Court of Rensselaer County (Kehn, J.), entered August 30, 2018, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, to find respondent in willful violation of his probation and placed him in the care and custody of the Office of Children and Family Services.

In March 2017, respondent was adjudicated as a juvenile delinquent upon admission of acts which, if committed by an adult, would constitute a crime.  Respondent was subsequently placed on probation for one year and was required, among other things, to cooperate with testing, evaluations and counseling as directed by his probation officer.  In February 2018, respondent's probation officer filed a violation of probation petition alleging that respondent had failed to attend the required counseling sessions.  At a proceeding held in May 2018, respondent admitted to not attending counseling and, after a dispositional hearing, was ultimately placed in the custody of the Office of Children and Family Services.  Respondent appeals, arguing that his allocution did not comply with Family Ct Act § 321.3.

Initially, we note that preservation of this claim was not required (see Matter of Richard S., 168 A.D.3d 749, 751 [2019]; Matter of Johnathan B.M., 129 A.D.3d 1517, 1518, 12 N.Y.S.3d 395 [2015]; Matter of Alexander B., 126 A.D.3d 533, 534, 5 N.Y.S.3d 423 [2015]; Matter of Daquan BB., 83 A.D.3d 1281, 1282, 920 N.Y.S.2d 835 [2011]).  Family Ct Act § 321.3(1) requires a court to advise a respondent of his or her right to a fact-finding hearing and to question both the respondent and his or her parent, if present, as to whether the respondent committed the act contained in the admission, whether the respondent is voluntarily waiving his or her right to a fact-finding hearing, and whether the respondent is aware of the possible specific dispositional orders (see Matter of Theodore N., 1 AD3d 828, 828–829, 767 N.Y.S.2d 500 [2003]; Matter of Brian OO., 158 A.D.2d 816, 816, 551 N.Y.S.2d 401 [1990]).  The May 2018 allocution did not meet these statutory requirements.  Although Family Court did advise respondent, to some extent, regarding his rights, the failure to meet the statutory mandates rendered the allocution inadequate.  Critically, although respondent's mother was present, the court failed to question her regarding respondent's waiver of the fact-finding hearing (see Matter of Allen R., 214 A.D.2d 800, 801, 625 N.Y.S.2d 310 [1995]; Matter of Daniel H., 236 A.D.2d 874, 874, 653 N.Y.S.2d 756 [1997]), or about his failure to attend counseling.  Instead, respondent was merely asked whether he had sufficient time to speak to his parents about the allocution (see Matter of Edgar Q., 185 A.D.2d 432, 433, 585 N.Y.S.2d 633 [1992]; compare Matter of Eric CC., 298 A.D.2d 632, 633–634, 748 N.Y.S.2d 186 [2002]).  Moreover, the court did not determine whether respondent and his mother understood the possible specific dispositional orders that might result from his allocution (see Matter of David T., 59 A.D.3d 631, 632, 873 N.Y.S.2d 706 [2009]; Matter of Sean R.P., 24 A.D.3d 1200, 1201, 807 N.Y.S.2d 499 [2005], lv denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1172 [2006]).  Although it was stated that placement outside the home was an available option, the court did not “ascertain whether [respondent] and his parent[ ] were aware of the full extent of such a disposition” (Matter of Derick UU., 298 A.D.2d 654, 654, 748 N.Y.S.2d 288 [2002]; see Matter of Florence V., 222 A.D.2d 991, 991, 635 N.Y.S.2d 779 [1995]).

Finally, we note that respondent's probationary period began in May 2017, and he was placed in the custody and care of the Office of Children and Family Services on August 21, 2018 for a period of one year.  Although it thus appears that respondent's period of placement has expired, because there are collateral consequences resulting from respondent being adjudicated a juvenile delinquent, the appeal is not moot (see Matter of Daniel H., 236 A.D.2d at 874, 653 N.Y.S.2d 756).  In this circumstance, the petition must be dismissed, rather than remitted (see Matter of Sean R.P., 24 A.D.3d at 1201, 807 N.Y.S.2d 499; Matter of James T., 304 A.D.2d 864, 864, 756 N.Y.S.2d 799 [2003]; Matter of Tiffany MM., 298 A.D.2d 728, 730, 748 N.Y.S.2d 625 [2002]).

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

Garry, P.J.

Lynch, Mulvey and Devine, JJ., concur.

Copied to clipboard