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Eduardo R. v. Erie County Attorney

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


April 30, 2010

IN THE MATTER OF EDUARDO R., RESPONDENT.
v.
ERIE COUNTY ATTORNEY, APPELLANT. (APPEAL NO. 2.)

Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered September 9, 2009 in a proceeding pursuant to Family Court Act article 3. The order adjourned the proceeding in contemplation of dismissal.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 9, 2010

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Family Court erred in entering an order adjourning the juvenile delinquency proceeding in contemplation of dismissal. Family Court Act § 315.3 provides that the court may, at any time prior to entering a finding pursuant to section 352.1, order that the proceeding be adjourned in contemplation of dismissal. Here, the court had previously made a finding that respondent was a juvenile delinquent pursuant to section 352.1, and thus the court lacked the authority to adjourn the proceeding in contemplation of dismissal. Rather, once the court "vacated" the prior order of conditional discharge, it was mandated by Family Court Act § 360.3 (6) to order a different disposition pursuant to section 352.2, and an adjournment in contemplation of dismissal is not listed as a possible disposition therein. We therefore reverse the order and remit the matter to Family Court for further proceedings in compliance with Family Court Act § 360.3 (6).

Present: Martoche, J.P., Centra, Fahey, Peradotto and Pine, JJ.

20100430

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