| Matter of Samantha K. |
| 2009 NY Slip Op 03437 [61 AD3d 1322] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Samantha K., a Person Alleged to be in Need ofSupervision. Bradford Central School, Respondent; Samantha K.,Appellant. |
—[*1] James P. Coleman, County Attorney, Watkins Glen (Dennis Morris of counsel), forrespondent.
Garry, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered June 19, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 7, to adjudicate respondent a person in need of supervision.
Family Court granted petitioner's application to adjudicate respondent a person in need ofsupervision because she was absent from school on 64 days and tardy on an additional 64 days inone school year. Respondent appeals.
Family Court properly denied respondent's motion to dismiss the petition on jurisdictionalgrounds. As required by Family Ct Act § 732, the petition alleged that respondent washabitually truant, under 18 years old, in need of supervision, and that petitioner had compliedwith the provisions of Family Ct Act § 735. The steps taken by petitioner to improverespondent's attendance were listed in documents attached to the petition (see Family CtAct § 732 [a]; Matter ofMercedes M.M., 52 AD3d 1210, 1211 [2008]). Regarding compliance with thejurisdictional requirements of Family Ct Act § 735, documents attached to the petitionindicated that diversion services were terminated because respondent had not cooperated and itwas unlikely that she would participate in or benefit from such services, rendering diversionunsuccessful (see Family Ct Act § 735 [g] [ii] [B]). Although the designatedagency's efforts only [*2]lasted one week after the requiredconference with respondent and her family, the agency reviewed the numerous steps taken bypetitioner to improve respondent's attendance and it determined, in view of her failure tocooperate, that further diversion attempts would not be beneficial (see Family Ct Act§ 735 [d] [iii]; [g] [i]). Viewed as a whole, the petition and attached documents wereadequate to comply with Family Ct Act §§ 732 and 735 (see Matter of Sonya LL., 53 AD3d727, 728 [2008]; compare Matterof Rajan M., 35 AD3d 863, 865 [2006]).
Family Court's admission of petitioner's records of respondent's school attendance did notviolate respondent's rights under the Confrontation Clause (see US Const 6th Amend).The attendance record was properly admitted under the business records exception to the hearsayrule as the testimony established that the record was made in the regular course of the school'sbusiness in compliance with the Education Law for state aid and attendance purposes, thatattendance information was regularly entered into the record, and that the entries were madecontemporaneously by teachers (see CPLR 4518; compare Matter of Jodel KK.,189 AD2d 63, 64 [1993], lv denied 82 NY2d 652 [1993]). Although records fallingwithin the business records exception are not automatically deemed nontestimonial statements,the attendance record did not exhibit "various indicia of testimoniality" (People v Rawlins, 10 NY3d 136,151 [2008]; see People v Freycinet,11 NY3d 38, 41 [2008]). The record contained a contemporaneous record of objective facts,its contents were not directly accusatory, and petitioner is neither an arm of law enforcement norinfluenced by a pro-law-enforcement bias (see People v Freycinet, 11 NY3d at 41). Asthe record was not testimonial, the Confrontation Clause is not implicated.
Family Court did not act improperly as an advocate for petitioner by asking severalquestions related to the foundation for admission of the attendance record. In this nonjurysetting, the questions merely facilitated the orderly and expeditious progress of the hearing (see People v Parrotte, 34 AD3d921, 921-922 [2006]; People v Walker, 242 AD2d 752, 752 [1997], lvdenied 91 NY2d 837 [1997]).
Peters, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.