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In Re Osriel L.

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 12, 2012

IN RE OSRIEL L., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT. PRESENTMENT AGENCY

Matter of Osriel L.

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.

Decided on April 12, 2012

Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels, Roman, JJ.

Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about August 30, 2011, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 12 months, unanimously reversed, as an exercise of discretion in the interest of justice, without costs, the delinquency finding and dispositional order vacated, and the matter remanded to Family Court with the direction to order an adjournment in contemplation of dismissal pursuant to Family Court Act § 315.3(1), nunc pro tunc to August 30, 2011.

The court improvidently exercised its discretion when it adjudicated appellant a juvenile delinquent and imposed probation. This was not "the least restrictive available alternative" (Family Ct Act § 352.2[2][a]). An adjournment in contemplation of dismissal would have sufficed to serve the needs of appellant and society (see e.g. Matter of Tyvan B., 84 AD3d 462 [2011]).

Appellant, who was 12 years old at the time of the underlying offense and adjudication, had no prior record. Appellant also had no background of serious trouble at home, at school, or in the community. There are no indications that appellant ever used drugs or alcohol, or was affiliated with a gang. Appellant accepted responsibility for his nonviolent theft of property.

Under the terms and conditions of an ACD, the court could have required the probation department to monitor appellant's school attendance and observance of a curfew (see e.g. Matter of Justin Charles H., 9 AD3d 316, 317 [2004]). We also note that appellant's mother voluntarily enrolled him in community counseling services while the case was pending.

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

ENTERED: APRIL 12, 2012

CLERK

20120412

© 1992-2012 VersusLaw Inc.



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