| Matter of Austin Q. |
| 2009 NY Slip Op 04323 [63 AD3d 1224] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Austin Q., a Person Alleged to be a JuvenileDelinquent. Dennis Curtin, as Clinton County Attorney, Respondent; Austin Q., Appellant. (AndAnother Related Proceeding.) |
—[*1] William A. Favreau, County Attorney, Plattsburgh (Van Crockett of counsel), forrespondent.
Mercure, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered July 2, 2008, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 3, to adjudicate respondent a juvenile delinquent.
In 2008, respondent (born in 1995) was arrested and charged in two petitions withcommitting acts that, if committed by an adult, would constitute the crimes of criminal sexual actin the first degree (two counts), sexual abuse in the first degree and endangering the welfare of achild (two counts). The charges tracked admissions by respondent during his interview withpolice that two or three years earlier, he had sexually abused a female cousin (born in 1998) anda male cousin (born in 2002), who is autistic. Following an unfavorable Huntley rulingdenying suppression of respondent's statement, he admitted to committing the acts alleged in thepetitions.
Although petitioner initially asserted that respondent should be placed in the custody of[*2]the Commissioner of Social Services, petitioner ultimatelyamended the petition to recommend a term of probation and proffered a safety plan to allowrespondent to remain at home. A dispositional hearing was held and, thereafter, Family Courtfound the safety plan inadequate to protect the safety of children in the community, adjudgedrespondent to be a juvenile delinquent, and directed that respondent be placed in a residentialfacility for approximately one year. Respondent appeals, arguing that Family Court failed toorder the least restrictive placement. We disagree.
At the conclusion of the dispositional hearing, Family Court was required to order the "leastrestrictive available alternative" set forth in Family Ct Act § 352.2 (1) that was consistentwith respondent's needs and best interests, as well as the need for protection of the community(Family Ct Act § 352.2 [2] [a]; see Matter of Melissa VV., 26 AD3d 682, 683 [2006]; Matterof Jonathan D., 297 AD2d 400, 402 [2002]). We note that " 'the statute does not require thatless restrictive alternatives actually be tried and fail before more restrictive alternatives can beimposed' " (Matter of Jason SS., 301 AD2d 900, 902 [2003] [citation omitted]; seeMatter of Jonathan D., 297 AD2d at 402). Here, given the evidence in the record thatrespondent has a long history of committing offenses, victimized more than two children, usedthreats and physical force against his victims, attempted to engage his younger brother insexually assaulting one of the victims, is at a moderate to high risk for recidivism and has noempathy for his victims or insight into his conduct, we cannot say that Family Court erred indetermining that placement in a residential facility is the least restrictive alternative consistentwith both respondent's needs and the needs of the community (see Matter of MelissaVV., 26 AD3d at 683; Matter of Jason SS., 301 AD2d at 902; Matter of JonathanD., 297 AD2d at 402; Matter of Manuel W., 279 AD2d 662, 663 [2001]; Matterof Nathan S., 198 AD2d 557, 558 [1993]).
Respondent's remaining arguments have been considered and found to be lacking in merit.
Cardona, P.J., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.