| Matter of Ramon H.-T. |
| 2011 NY Slip Op 06843 [87 AD3d 1141] |
| September 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Ramon H.-T.,Appellant. |
—[*1] James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel),for respondent.
In a proceeding pursuant to Family Court Act article 7, Ramon H.-T. appeals from an orderof fact-finding and disposition of the Family Court, Dutchess County (Forman, J.), dated August12, 2010, which, upon an order of adjournment in contemplation of dismissal of the same courtdated June 23, 2009, made upon his admission to truancy, and upon an order of the same courtdated March 15, 2010, restoring the matter to the calendar, adjudged him to be a person in needof supervision and directed that he be placed in the custody of the Dutchess CountyCommissioner of Social Services for a period of up to 12 months.
Ordered that the order of fact-finding and disposition is reversed, on the law, without costs ordisbursements, and the proceeding is dismissed.
On June 23, 2009, the appellant, an alleged person in need of supervision, admitted totruancy, and the Family Court, on the appellant's consent, entered an order on that dateadjourning the matter in contemplation of dismissal until December 23, 2009. The Family Courtdirected, in the same order, that the matter be restored to the calendar prior to the six-monthexpiration date on December 23, 2009, and then adjourned in contemplation of dismissal for anadditional four-month period with supervision. "An adjournment in contemplation of dismissal isan adjournment of the proceeding, for a period not to exceed six months with a view to ultimatedismissal of the petition in furtherance of justice . . . Upon application of thepetitioner, or upon the court's own motion, made at any time during the duration of the order, thecourt may restore the matter to the calendar. If the proceeding is not so restored, the petition is atthe expiration of the order, deemed to have been dismissed by the court in furtherance of justice"(Family Ct Act § 749 [a]).
As a general rule, "points which were not raised at trial may not be considered for the firsttime on appeal" (People v Thomas, 50 NY2d 467, 471 [1980]). A narrow exception tothis rule exists where a court issues an unauthorized or unlawful sentence (cf. People vSamms, 95 NY2d 52, 55-57 [2000]; People v Fuller, 57 NY2d 152 [1982]). Here,although the appellant did not object to the order dated June 23, 2009, we permit him to argue forthe first time on appeal the propriety of that order, as well as an order dated March 15, 2010,restoring the matter to the calendar, as the argument involves the legality of those orders and theFamily Court exceeding its statutory authority (cf. People v David, 65 NY2d 809 [1985];People v Fuller, 57 NY2d 152 [1982]; People v Lopez, 28 NY2d 148, 152[1971]).[*2]
In the order dated June 23, 2009, the Family Court clearlydetermined that the appellant required a period of supervision longer than six months. Thus, theentry of an adjournment in contemplation of dismissal (hereinafter ACD) was not a viable option(see Matter of Melissa B., 49 AD3d536, 537 [2008]). Moreover, while the six-month ACD period expired on December 23,2009, the first and only application to restore the matter to the calendar was made on March 12,2010, nearly three months after the expiration of the adjournment period, and the matter wasrestored to the calendar three days later in the order dated March 15, 2010. Therefore, as the casewas not restored to the calendar within the requisite six-month time period, any subsequentaction by the Family Court, including the issuance of the order of fact-finding and disposition,was a nullity (see Matter of TraneilB., 43 AD3d 1302, 1302, 1303 [2007]; Matter of Cleveland R., 14 AD3d 568, 569 [2005]; Matter ofKenyetta D., 188 AD2d 830, 831 [1992]).
Accordingly, the Family Court should have deemed the petition to have been dismissed infurtherance of justice (see Family Ct Act § 749 [a]).
The remaining contentions either are without merit or have been rendered academic by ourdetermination. Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ., concur.