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In re Shalar N. (Anonymous)

Supreme Court of New York, Second Department

June 20, 2018

In the Matter of Shalar N. (Anonymous), appellant. (Docket No. D-25516-15)

          Argued - May 4, 2018

         D55769 M/hu

          Seymour W. James, Jr., New York, NY (Dawne Mitchell and Marcia Egger of counsel), for appellant.

          Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Aaron M. Bloom of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. MARK C. DILLON HECTOR D. LASALLE FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In a juvenile delinquency proceeding, Shalar N. appeals from (1) an order of disposition of the Family Court, Kings County (Alan Beckoff, J.), dated November 2, 2016, and (2) an order of the same court dated September 1, 2017. The order of disposition adjudicated Shalar N. a juvenile delinquent and placed him on probation for a period of 12 months. The order dated September 1, 2017, denied the motion of Shalar N. to vacate the order of disposition and for an adjournment in contemplation of dismissal nunc pro tunc. The appeal from the order of disposition brings up for review an order of fact-finding of the same court dated June 20, 2016, which, after a hearing, found that Shalar N. committed acts which, if committed by an adult, would have constituted the crimes of sexual abuse in the first degree and forcible touching.

         ORDERED that the appeal from so much of the order of disposition as placed Shalar N. on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements; and it is further, ORDERED that the appeal from so much of the order dated September 1, 2017, as denied that branch of Shalar N.'s motion which was to vacate so much of the order of disposition as placed him on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further, ORDERED that the order dated September 1, 2017, is affirmed insofar as reviewed, without costs or disbursements.

         The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months, and the appeal from so much of the order dated September 1, 2017, as denied that branch of his motion which was to vacate so much of the order of disposition as placed him on probation for a period of 12 months, have been rendered academic, as the period of placement has expired. However, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent, and the appeal from so much of the order dated September 1, 2017, as denied that branch of his motion which was to vacate so much of the order of disposition as adjudicated him a juvenile delinquent, have not been rendered academic, as there maybe collateral consequences resulting from the adjudication of delinquency (see Matter of Kieron C., 140 A.D.3d 1160, 1161).

         The Family Court has broad discretion in determining the proper disposition in a juvenile delinquency proceeding, and its determination is accorded great deference (see id. at 1161; Matter of Brian N., 133 A.D.3d 665, 665; Matter of Mark G., 131 A.D.3d 1057, 1057; Matter of Jesus S., 104 A.D.3d 694, 695). Here, contrary to the appellant's contentions, the Family Court providently exercised its discretion in adjudicating him a juvenile delinquent and placing him on probation instead of granting him an adjournment in contemplation of dismissal (see Matter of Kieron C., 140 A.D.3d at 1161; Matter of DeandreMc., 124 A.D.3d 786; Matter of Jesus S., 104 A.D.3d at 695). The appellant was not entitled to an adjournment in contemplation of dismissal merely because this was his first encounter with the law, or in light of the other mitigating circumstances that he cites (see Matter of Kieron C., 140 A.D.3d at 1161; Matter of Brian N., 133 A.D.3d at 665; Matter of Aaron B., 132 A.D.3d 759, 759; Matter of Tafari M., 90 A.D.3d 1052, 1053). Moreover, even though an adjournment in contemplation of dismissal was recommended by the probation department (see Matter of Mark G., 131 A.D.3d at 1058; Matter of Donovan E., 92 A.D.3d 881, 882; Matter of Melissa B., 49 A.D.3d 536), the court providently exercised its discretion in determining that the appellant needed probation supervision, in light of the seriousness of the sexual misconduct committed against the complainant, who was eight years old at the time (see Matter of Tafari M., 90 A.D.3d at 1053; Matter of Jonathan F., 72 A.D.3d 963, 964), and the appellant's denial of the offending conduct, his failure to accept responsibility for his actions, and his lack of remorse (see Matter of Sheala H., 156 A.D.3d 882, 883; Matter of Jahiem J., 155 A.D.3d 1037, 1038).

         The Family Court also providently exercised its discretion in denying that branch of the appellant's motion which was to vacate so much of the order of disposition as adjudicated him a juvenile delinquent, and for an adj ournment in contemplation of dismissal nunc pro tunc. Pursuant to Family Court Act § 355.1(1)(b), the court may vacate an order of disposition "[u]pon a showing of a substantial change of circumstances." Here, we agree with the court's conclusion that the appellant did not make the requisite showing of a substantial ...


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