| Matter of Arthur O. |
| 2008 NY Slip Op 07835 [55 AD3d 1019] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Arthur O., a Person Alleged to be a Juvenile Delinquent.Steven E. Ratner, as Assistant Otsego County Attorney, Respondent; Arthur O., Appellant. (AndAnother Related Proceeding.) |
—[*1] Carl F. Lodes, County Attorney, Cooperstown (Steven Ratner of counsel), forrespondent.
Rose, J. Appeal from an order of the Family Court of Otsego County (Coccoma, J.), enteredDecember 19, 2007, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.
During the police investigation underlying this juvenile delinquency proceeding, the 13-year-oldrespondent was placed in custody and interrogated in the presence of a caseworker from the DelawareCounty Department of Social Services (hereinafter DSS). Two weeks earlier, respondent's mother hadvoluntarily surrendered his care and custody to DSS because she was unable to control his behavior.After respondent and the caseworker were advised of respondent's Miranda rights and theysigned a written waiver, respondent made incriminating statements. When respondent then moved tosuppress his earlier statements on the ground that the police had violated Family Ct Act § 305.2(7) by failing to notify and advise his mother of his Miranda rights, Family Court noted thatDSS was legally responsible for his care and denied the [*2]motion.[FN*]Respondent was then adjudicated a juvenile delinquent.
On his appeal, respondent raises the possibility that his mother's surrender of custody to DSS hadnot been legally effectuated. He contends that his statements to police should have been suppressed asa result because DSS may not have been legally responsible for his care as required by Family Ct Act§ 305.2 (7). This claim, however, is unpreserved because respondent failed to assert it in FamilyCourt (see Matter of Edward B., 80 NY2d 458, 462 [1992]; Matter of Daniel JJ., 31 AD3d 930,930 [2006], lv denied 7 NY3d 714 [2006]). Were we to consider it in any event, we wouldfind it to be without merit because the mother's testimony at the suppression hearing cast no doubt onher surrender of custody to DSS. Moreover, the record reflects no facts from which the police couldreasonably be expected to question whether the DSS caseworker was respondent's legal custodian(see e.g. People v Salaam, 83 NY2d 51, 56-57 [1993]).
We are similarly unpersuaded by respondent's argument that DSS was an ineffective or impropercustodian because its caseworker had not developed a sufficiently protective relationship with him andacted in conflict with his interests by advising him to tell the police what had happened. There is noevidence that DSS acted against respondent's interests (compare Matter of James OO., 234AD2d 822, 823 [1996]). Nor, as we noted in an analogous situation under CPL 140.20 (6), is thereany requirement that the police make a subjective determination as to whether the relationship betweenDSS and the juvenile is sufficiently supportive when they have otherwise complied with the specificrequirements of the statute (see People v Gardner, 257 AD2d 675, 676 [1999], lvdenied 93 NY2d 924 [1999]).
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Under Family Ct Act §305.2, a parent or person legally responsible for the child's care or, if they are unavailable, the personwith whom the child resides must be notified "immediately" when a child under age 16 is taken intocustody, and the child cannot be questioned unless both the child and the adult so notified have beenadvised of the child's Miranda rights (Family Ct Act § 305.2 [3], [7]).