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In re Aaron B.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 10, 2010

IN RE AARON B., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT.
PRESENTMENT AGENCY

Order of disposition, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about February 7, 2007, which adjudicated appellant a juvenile delinquent upon his admission in Westchester County Family Court (transferred to Bronx County), that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him in the custody of the Office of Children and Family Services for a period of 18 months, unanimously reversed, on the law, without costs, and the matter remanded to Family Court, Bronx County for a new fact-finding hearing.

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.

Tom, J.P., Andrias, Catterson, Moskowitz, Acosta, JJ.

Appellant is entitled to vacatur of his admission because the court failed to comply with the allocution requirements of Family Court Act § 321.3(1). The allocution was inadequate because the court did not advise appellant that he had the rights to testify, call witnesses in his own behalf, and confront witnesses against him, or of the presentment agency's obligation to prove his guilt beyond a reasonable doubt (see Matter of David T., 59 AD3d 631 [2009]). Since this requirement is non-waivable (see Family Ct Act § 321.3[1]), preservation is not required (see Matter of Tyler D., 64 AD3d 1243 [2009]).

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

20100610

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