| Matter of Osriel L. |
| 2012 NY Slip Op 02761 [94 AD3d 523] |
| April 12, 2012 |
| Appellate Division, First Department |
| In the Matter of Osriel L., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or aboutAugust 30, 2011, which adjudicated appellant a juvenile delinquent upon his admission that hecommitted an act that, if committed by an adult, would constitute the crime of criminalpossession of stolen property in the fifth degree, and placed him on probation for a period of 12months, unanimously reversed, as an exercise of discretion in the interest of justice, withoutcosts, the delinquency finding and dispositional order vacated, and the matter remanded toFamily Court with the direction to order an adjournment in contemplation of dismissal pursuantto Family Court Act § 315.3 (1), nunc pro tunc to August 30, 2011.
The court improvidently exercised its discretion when it adjudicated appellant a juveniledelinquent and imposed probation. This was not "the least restrictive available alternative"(Family Ct Act § 352.2 [2] [a]). An adjournment in contemplation of dismissal would havesufficed to serve the needs of appellant and society (see e.g. Matter of Tyvan B., 84 AD3d 462 [2011]).
Appellant, who was 12 years old at the time of the underlying offense and adjudication, hadno prior record. Appellant also had no background of serious trouble at home, at school, or in thecommunity. There are no indications that appellant ever used drugs or alcohol, or was affiliatedwith a gang. Appellant accepted responsibility for his nonviolent theft of property.
Under the terms and conditions of an ACD, the court could have required the probationdepartment to monitor appellant's school attendance and observance of a curfew (see e.g.Matter [*2]of Justin Charles H., 9 AD3d 316, 317 [2004]). We alsonote that appellant's mother voluntarily enrolled him in community counseling services while thecase was pending. Concur—Mazzarelli, J.P., Catterson, DeGrasse, Manzanet-Daniels andRomán, JJ.