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In the Matter of Samed S.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 8, 2012

IN THE MATTER OF SAMED S., MAURICE R., MALIK S., JOSEFT A., FRANSHESKA D., AMAURI R., AND ADELL H.-S. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; AND SALEH A., RESPONDENT-APPELLANT, AND BRAUNA S., RESPONDENT.

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered September 10, 2010 in a proceeding pursuant to Family Court Act article 10.

Matter of Matter of Samed S. (Saleh A.)

Appellate Division, Fourth Department

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 June 8, 2012

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.

The order adjudicated the subject children to be neglected and abused.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father appeals from an order adjudging several children under his care and control to be neglected and abused. Prior to the hearing on the issue whether the father was "a person legally responsible" pursuant to Family Court Act § 1012 (g), the father had pleaded guilty to sexually abusing one child (hereafter, victim) and was sentenced to a term of incarceration. We reject the father's contention that the petition should have been dismissed because he pleaded guilty to a count in the indictment that alleged sexual contact in December 2004, not July 2006, as alleged in the Family Court petition. The proof adduced at the hearing on the issue whether the father was a "person legally responsible" established that the sexual contact occurred in December 2004. Thus, inasmuch as the proof does not conform to the allegations of the petition, the court may amend the allegations to conform to the proof (see § 1051 [b]), and the petition is not subject to dismissal on that ground. We have considered the father's remaining contentions and conclude that they are without merit. Entered: June 8, 2012 Frances E. Cafarell Clerk of the Court

20120608

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