SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 21, 2008
IN THE MATTER OF FELIX G., RESPONDENT-RESPONDENT.
ERIE COUNTY ATTORNEY, PETITIONER-APPELLANT.
Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered January 29, 2008 in a proceeding pursuant to Family Court Act article 3. The order, among other things, adjudged that respondent is a person in need of supervision.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., HURLBUTT, FAHEY, PERADOTTO, AND PINE, JJ.
It is hereby ORDERED that the order so appealed from is unanimously reversed in the interest of justice and on the law without costs and the matter is remitted to Family Court, Erie County, for a new hearing on the petition alleging that respondent is a juvenile delinquent.
Petitioner failed to preserve for our review its contention that Family Court erred in substituting a petition alleging that respondent is a person in need of supervision for its petition alleging that respondent is a juvenile delinquent at the close of petitioner's proof at the fact finding hearing (see generally Matter of Jonathan S., ___ AD3d ___ [Oct. 3, 2008]). We nevertheless review that contention in the interest of justice (see Matter of Yadiel Roque C., 17 AD3d 1168, 1169), and we conclude that reversal is required. Although the court may, with the consent of petitioner, substitute a petition alleging that respondent is a person in need of supervision for a petition alleging that he or she is a juvenile delinquent (see Family Ct Act § 311.4 ), here the court failed to obtain petitioner's consent. In addition, the court failed to determine at the conclusion of the fact-finding hearing whether respondent committed the acts alleged in the petition (see § 345.1), and the court further erred in ordering that respondent be placed under probation supervision without ordering a probation investigation (see § 351.1 ) and then conducting a dispositional hearing (see § 350.1 ).
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