| Matter of Kyle FF. |
| 2011 NY Slip Op 05383 [85 AD3d 1463] |
| June 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kyle FF., Alleged to be a Juvenile Delinquent. VanCrockett, as Assistant County Attorney for Clinton County, Respondent; Kyle FF.,Appellant. |
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Egan Jr., J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered September 28, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 3, to adjudicate respondent a juvenile delinquent.
In August 2010, respondent (born in 1995) appeared in Family Court and admitted tocommitting acts that, if committed by an adult, would constitute the crime of criminal mischief inthe fourth degree. At the dispositional hearing that followed, the parties stipulated to theadmission of the predispositional report, which recommended, among other things, thatrespondent be placed on probation for two years subject to various special conditions. Althoughthe parties asked that Family Court accept that recommendation and indicated that they intendedto offer no further proof in this regard, Family Court called as its own witness the author of thereport and questioned her extensively regarding respondent's prior admission to the localhospital's mental health unit and a subsequent mental health evaluation conducted by theNortheast Parent & Child Society. In response to this testimony, Family Court then indicated thatit would not close the proof until it obtained the corresponding records for respondent's [*2]admission/evaluation and stated its intent to issue subpoenas to thateffect. Following additional discussion, Family Court agreed to accept the discharge summaryfrom respondent's hospital admission and closed the proof. Thereafter, relying almost exclusivelyupon proof that it elicited, Family Court ordered that respondent be placed with the Office ofChildren and Family Services until August 31, 2011. This appeal by respondent ensued.
The crux of respondent's argument on appeal is that Family Court improperly assumed aprosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing.Although respondent did not object when Family Court called the author of the predispositionalreport as a witness and, further, stipulated to the admission of the discharge summary, therebyrendering this issue unpreserved for our review (see Matter of Keaghn Y., 84 AD3d 1478, 1479-1480 [2011]), wenevertheless exercise our discretion and reverse Family Court's order (see Matter of Jacqulin M., 83 AD3d844, 844 [2011]; Matter of YadielRoque C., 17 AD3d 1168, 1169 [2005]).
To be sure, Family Court is vested with the discretion to call witnesses, including the authorof the predispositional report (see Family Ct Act § 350.4 [2]), and may assume "amore active role in the presentation of evidence in order to clarify a confusing issue or to avoidmisleading the trier of fact" (People v Arnold, 98 NY2d 63, 67 [2002]). However, "[t]heoverarching principle restraining the court's discretion [in this regard] is that it is the function ofthe judge to protect the record at trial, not to make it" (id. at 67), and the court must takecare to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel RoqueC., 17 AD3d at 1169 [internal quotation marks and citations omitted]).
Here, even though the parties agreed with the recommendation made by the ProbationDepartment, Family Court called and extensively questioned the author of the predispositionalreport, secured the production of additional documentary evidence and then, accordingessentially no weight to the underlying recommendation and the parties' expressed wishes,crafted a disposition based almost entirely upon proof that it elicited—a practice withwhich this Court previously has expressed its disapproval (see Matter of Keaghn Y., 84AD3d at 1479-1480; Matter of Blaize F.[Christopher F.], 74 AD3d 1454, 1455 [2010]; Matter of Stampfler v Snow, 290AD2d 595, 596 [2002]). Accordingly, Family Court's order is reversed and, as respondent'splacement has not yet expired, this matter is remitted for a new dispositional hearing to be heldforthwith. In light of this conclusion, we need not reach respondent's remaining argument.
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is reversed, onthe facts, without costs, and matter remitted to the Family Court of Clinton County for furtherproceedings not inconsistent with this Court's decision before a different judge.