The opinion of the court was delivered by: Friedman, J.
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 November 29, 2012
SUPREME COURT, APPELLATE DIVISIONFirst Judicial Department
Peter Tom,J.P. David Friedman Rolando T. Acosta Helen E. Freedman, JJ.
Rayshawn P. appeals from the order of Family Court, Bronx County (Allen Alpert, J.), entered on or about June 30, 2011, which remanded appellant to detention in the custody of the Administration for Children's Services of the City of New York, and order, same court and Judge, entered on or about September 27, 2011, which modified an order of disposition dated April 7, 2011, to the extent of imposing upon appellant enhanced supervision probation, with the term of such probation set to expire on September 26, 2013.
This appeal presents for resolution two questions left open by the Court of Appeals' decision in Matter of Jazmin A. (15 NY3d 439, 443 n * ): "whether a properly made motion under Family Court Act § 355.1 to stay, modify or terminate an order of probation based on change of circumstances would provide an alternative means of initiating proceedings to revoke probation, and whether detention would be authorized pending resolution of such a motion" (internal quotation marks and brackets omitted). We answer both questions in the negative.
By a final order of disposition entered April 7, 2011, (the 2010 case), Family Court, Bronx County, adjudicated appellant Rayshawn P. a juvenile delinquent, placed him on probation for 18 months, and ordered him to perform 50 hours of community service. The adjudication was based on appellant's admission that, on October 27, 2010, he had committed an act that, if committed by an adult, would constitute grand larceny in the fourth degree [*fn1]. Thereafter, on June 29, 2011, appellant was arrested for resisting arrest after he was apprehended for allegedly punching someone in the face.
On June 30, 2011, upon the application of the detention center holding appellant based on his arrest the previous day, Family Court conducted a pre-petition hearing pursuant to Family Court Act § 307.4 [*fn2]. The police witness, Officer Jarmarie Flowers, testified that she placed appellant under arrest after he was brought to the precinct station. Officer Flowers stated that she arrested appellant based on information provided to her by her lieutenant, who told Flowers that he had seen appellant "engaging in an assault," and that as he tried to arrest him, appellant had "started to kick, punch, and throw in the direction of the officers." Officer Flowers acknowledged that she had no personal knowledge of the events on which the arrest was based.
At the conclusion of the hearing, the court determined that it had jurisdiction over the matter arising from the June 29 arrest. However, the court did not grant the pre-petition detention application before it, which, under Family Court Act § 307.4(7), would have entitled appellant to the filing of a petition and a probable-cause hearing within four days. Instead, the court, at its own instance, and over the objection of appellant's counsel, reactivated appellant's 2010 case (for which, as noted, he was already on probation) and stated that it was "remanding the respondent[,] open remand[,] pending modification of that disposition." The court then dismissed the pre-petition application, without prejudice to the filing of a petition, and adjourned the matter to July 18, 2011.
The case file contains two written orders of the Family Court bearing the date of June 30, 2011, both under the docket number of the 2010 case, which, as noted, had already been finally adjudicated. One is an order to show cause, which, "[u]pon the Court's own motion pursuant to Family Court Act § 355.1(1)," directed appellant to show cause, at a hearing to be held on July 18, 2011, "(1) why the Court should not make a determination that there has been a substantial change of circumstances since the entry of the order of disposition, in that respondent's arrest for the commission of one or more acts of juvenile delinquency on 6/30/11, constitutes a violation of the order which placed him under probation supervision in this case; (2) why the Court should not enter an order in accordance with Family Court Act § 355.1(1)(b) vacating, modifying or terminating the order of disposition based upon such substantial change of circumstances; and (3) why the Court should not enter such interim orders as may be necessary to protect the best interests of the respondent and the safety of the community."[*fn3]
The other Family Court order dated June 30, 2011, that is found in the case file is denominated an "Order Directing Detention" (the remand order). Although, as of June 30, 2011, no new delinquency petition (Family Court Act § 311.1) or petition alleging a violation of probation (Family Court Act § 360.2) had been filed based on the incident of June 29, the remand order recites that a petition under section 311.1, "including a charge of Violation of Probation," had been filed. The remand order goes on to state that Family Court had determined that the "[d]etention of the [r]espondent is necessary" under the criteria of Family Court Act § 320.5, which addresses an initial appearance after the filing of a petition. Based on findings that "[r]espondent did not comply with terms of probation and was arrested" and that ...