In the Matter of KAMERON V.V., Alleged to be a Juvenile Delinquent. MADISON COUNTY ATTORNEY, Respondent; KAMERON V.V., Appellant.
Calendar Date: November 14, 2017
E. Smith, Wampsville, for appellant.
M. Wayland-Smith, County Attorney, Wampsville (Jeffrey A.
Aumell of counsel), for respondent.
Before: Garry, J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Madison County
(McDermott, J.), entered August 9, 2016, which granted
petitioner's application, in a proceeding pursuant to
Family Ct Act article 3, to adjudicate respondent a juvenile
commenced this juvenile delinquency proceeding alleging that
respondent (born in 2003) had committed acts which, if
committed by an adult, would constitute the crimes of sexual
abuse in the first degree (see Penal Law §
130.65) and endangering the welfare of a child (see
Penal Law § 260.10). In satisfaction of the
petition's allegations, respondent admitted to the charge
of endangering the welfare of a child and was adjudicated a
juvenile delinquent. Following a hearing, in July 2016,
Family Court placed respondent on probation for one year.
Respondent now appeals.
initial matter, in the absence of a motion to dismiss,
respondent's noncompliance with the 60-day period within
which to file an appellant's brief and record on appeal
(see 22 NYCRR 800.9 [a]) does not warrant dismissal
of respondent's appeal (see Abele Tractor &
Equip. Co., Inc. v RJ Valente, Inc., 94 A.D.3d 1270,
1271 ). Nor do we agree with petitioner's claim
that the appeal should be dismissed as moot. Even though
respondent has completed his one-year probationary period,
the delinquency determination being challenged on appeal
"implicates possible collateral legal consequences"
(Matter of Ryan LL., 119 A.D.3d 994, 994 ,
lv denied 25 N.Y.3d 904');">25 N.Y.3d 904 ; see Matter of
Eric CC., 298 A.D.2d 632, 633 n 1 ). We also
reject petitioner's assertion that respondent failed to
preserve his present challenge for our review (see Matter
of Johnathan B.M., 129 A.D.3d 1517, 1518 ;
Matter of Daquan BB., 83 A.D.3d 1281, 1282-1283
; but see Matter of Ricky A., 11 A.D.3d 532,
the merits, Family Court "shall not consent to the entry
of an admission unless it advises the respondent of his or
her right to a fact-finding hearing and, further, ascertains
through allocution of the respondent and his or her parent
that the respondent committed the acts underlying the
admission, is voluntarily waiving a fact-finding hearing and
is aware of the possible specific dispositional orders"
(Matter of Daquan BB., 83 A.D.3d at 1282 [internal
quotation marks, brackets and citations omitted];
see Family Ct Act § 321.3 ; Matter of
William VV., 42 A.D.3d 710, 711 ). Even though
Family Court partially complied with Family Ct Act §
321.3, we agree with respondent that the allocution was
insufficient overall (see Matter of Allen R., 214
A.D.2d 800, 801 ).
hearing, Family Court merely asked respondent whether he
"engaged in conduct that was likely to pose a risk of
injury to a child." Although Family Court specified the
date and the location of the alleged crime, the court did not
mention any other specific underlying fact forming the basis
of the alleged crime (compare Matter of Isaac L.,
142 A.D.3d 1263, 1263-1264 ; Matter of John
II., 31 A.D.3d 842, 842 ). As such, Family Court
did not "elicit a sufficient factual basis to support
respondent's admission" (Matter of Barry
H., 24 A.D.3d 1137, 1138 ; see Matter of
Tiffany MM., 298 A.D.2d 728, 729 ). Furthermore,
while Family Court advised respondent of his right to a
hearing and his right to remain silent, the record does not
indicate that respondent was advised of his right to present
witnesses on his behalf, his right to confront witnesses and
that the presentment agency had to prove beyond a reasonable
doubt that he committed the alleged act, which if committed
by an adult, would constitute a crime (see Matter of
Daquan BB., 83 A.D.3d at 1282). Nor do we find that
merely asking respondent's mother as to whether
respondent's admission to the charge of endangering the
welfare of the child was done with her approval constituted a
sufficient allocution of respondent's parent as required
by Family Ct § 321.3 (1) (see Matter of Allen
R., 214 A.D.2d at 801; Matter of Herbert TT.,
192 A.D.2d 916, 917 ).
of the foregoing deficiencies, we conclude that the
allocution did not comply with the mandates of Family Ct Act
§ 321.3. Finally, because respondent's probationary
period has expired, remittal of the matter is unnecessary and
the petition must be dismissed (see Matter of Robert
OO., 34 A.D.3d 1074, 1075 ; Matter of Edgar
Q., 185 A.D.2d 432, 433 ).
J.P., Lynch, Clark and Pritzker, JJ., concur.
that the order is reversed, on the law, without costs, ...