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In re Deiby C.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

IN RE DEIBY C., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT.

Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about February 25, 2008, which adjudicated appellant a juvenile delinquent, upon his admission he had committed an act that, if committed by an adult, would constitute the crime of possession of a stolen vehicle in violation of Vehicle and Traffic Law § 426, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously reversed, on the law, without costs, and the petition dismissed.

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.

Gonzalez P.J., Tom, Sweeny, Freedman, Abdus-Salaam, JJ.

Presentment Agency

Appellant is entitled to vacatur of his admission because "the court failed to comply with Family Court Act § 341.2(3) which mandates that a court not proceed with any hearing in the absence of the juvenile's parent unless a reasonable and substantial' effort has been made to notify the parent. No such effort was made here, thereby requiring reversal of the disposition" (Matter of Timothy B., 114 AD2d 336, 337 [1985]). The record contains no satisfactory explanation for the mother's absence from the allocution proceeding, given that she was in court earlier the same day and was also present at the dispositional hearing. Since this requirement is non-waivable, preservation is not required (see Matter of Tyler D., 64 AD3d 1243, 1244 [2009]).

Since appellant completed his period of placement, we dismiss the petition rather than remanding the matter for further proceedings (see e.g. Matter of Joshua HH., 299 AD2d 760 [2002]). We have considered and rejected the presentment agency's remaining arguments.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091222

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