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In re Ricky A.

Other Lower Courts

January 3, 2008

In the Matter of Ricky A., A Person Alleged to be a Juvenile Delinquent, Respondent.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Omshanti Parnes, Esq., - law guardian for Respondent.

Meredith Neverett, Esq., - counsel for Respondent's mother.

OPINION

Timothy J. Lawliss, J.

On October 18, 2007, the Court conducted a fact-finding hearing in the above referenced matter. Based upon the voluntary admissions made by respondent, the Court found that in the late night of June 26, 2007 or early morning of June 27, 2007, the respondent entered a building with the intent to commit a crime located at the Plattsburgh High School in Plattsburgh, New York. Said acts if committed by an adult would constitute the crime of Burglary in the Third Degree as defined by Section 140.20 of the Penal Law.

On November 28, 2007, the Court conducted a dispositional hearing in this matter. At the close of evidence in the dispositional hearing, the Law Guardian moved pursuant to Family Court Act 311.4(2) for an order from the Court substituting a finding that the respondent is a person in need of supervision for a finding that the respondent is a juvenile delinquent. [1] For the reasons stated below, the Court hereby denies the Law Guardian's motion.

The decision as to whether or not a substitute finding should be made is left to the discretion of the trial court. Of course, no discretion is completely unfettered, ( see, Matter of Devon R., 278 A.D.2d 15, 717 N.Y.S.2d 145 [1st Dept 2000](reversing trial court for improvidently exercising its discretion in declining to substitute a PINS finding for a juvenile delinquency adjudication)). Accordingly, the Court has looked for guidance in the exercise of its discretion.

The statute itself provides no guidance as to what factors the Court should consider. The Court has identified no legislative history which provides any guidance. Thus, the Court turns to case law. Unfortunately, the guidance provided by the case law is also quite thin.

In Michael OO., 37 A.D.3d 1002, 830 N.Y.S.2d 390 [3d Dept 2007], the trial court neglected to even consider the merits of the motion for substituted findings due to procedural reasons which the appellate court found to be invalid. In remanding the matter to the trial court for further consideration of the motion, the Third Department stated "we note that such a finding would not necessarily negate those aspects of probation important to facilitating respondent's rehabilitation. (see, Family Court Act 757; 22 NYCRR 205.66)." It appears that in making this notation, the appellate court is merely noting that probation is a permissible disposition for both a juvenile delinquent and a person in need of supervision. A review of the specific sections cited do not provide this Court with any further guidance as to what factors should be considered.

In Joshua J., 227 A.D.2d 707, 641 N.Y.S.2d 741 [3d Dept 1996], the court states "we are similarly unpersuaded that the Family Court abused its discretion in refusing to substitute a finding that the respondent is a person in need of supervision for a finding of juvenile delinquency ... (citation omitted)". Unfortunately, the court provided no explanation as to why it was unpersuaded.

In Rosemary R., 29 A.D.3d 309, 813 N.Y.S.2d 300 [1st Dept 2006], the appellate court concluded that the trial court properly adjudicated the child a juvenile delinquent rather than a person in need of supervision. In doing so, the Court stated as its basis, such factors as the violent nature of the underlying incident, misbehavior at home, truancy, substance abuse problems and association with violent gangs. It does not appear that the First Department intended these facts to be a complete list of the factors that the trial court should consider, but this language does provide this Court with some guidance.

In Devin R., 278 A.D.2d 15, 717 N.Y.S.2d 145 [1st Dept 2000], the court found that it was appropriate to substitute a PINS finding for a juvenile delinquency finding. The court based its decision upon "the unusual circumstances of this case, which involve an eight year old child in need of psychiatric treatment ..." Unfortunately, the mere fact that an eight year old needs psychiatric treatment is not unusual in Family Court. In reviewing the remainder of the short decision, the Court notes that Devin R. involved acts which if committed by an adult would constitute two ...


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