| Matter of Jonathan M. |
| 2013 NY Slip Op 04340 [107 AD3d 805] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Jonathan M., a Person Alleged to be aJuvenile Delinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Sharyn Rootenberg ofcounsel; Max Ernst on the brief), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3,Jonathan M. appeals from an order of disposition of the Family Court, Kings County(McElrath, J.), dated August 23, 2012, made upon his admission, finding that he hadcommitted acts which, if committed by an adult, would have constituted the crime ofassault in the third degree, adjudged him to be a juvenile delinquent, and imposed aconditional discharge for a period of 12 months.
Ordered that the order of disposition is reversed, on the facts and in the exercise ofdiscretion, and the matter is remitted to the Family Court, Kings County, for anadjournment of the proceeding in contemplation of dismissal.
The appellant admitted to committing acts which, if committed by an adult, wouldhave constituted the crime of assault in the third degree, in connection with an incidentwhere he struck a classmate in the eye. At the dispositional hearing, the appellantrequested an adjournment of the proceeding in contemplation of dismissal pursuant toFamily Court Act § 315.3 (1). The Family Court denied the appellant's request,adjudged him to be a juvenile delinquent, and imposed a conditional discharge for aperiod of 12 months.
"If, upon the conclusion of the dispositional hearing, the court determines that therespondent requires supervision, treatment or confinement, the court shall enter a findingthat such respondent is a juvenile delinquent and order an appropriate dispositionpursuant to [Family Court Act] section 352.2" (Family Ct Act § 352.1 [1]).However, "[i]f, upon the conclusion of the dispositional hearing, the court determinesthat the respondent does not require supervision, treatment or confinement, the petitionshall be dismissed" (Family Ct Act § 352.1 [2]).
Once it has entered a finding that the respondent is a juvenile delinquent, a courtmust enter an order of disposition either conditionally discharging the respondent (seeFamily Ct Act § 353.1), putting the respondent on probation (seeFamily Ct Act § 353.2), placing the respondent with the division of youth orcommissioner of social services (see Family Ct Act § 353.4), or directingone of the other outcomes specified in Family Court Act § 352.2 (1). "Indetermining an appropriate order the court shall consider the needs and best interests ofthe respondent as well as the need for [*2]protection ofthe community" (Family Ct Act § 352.2 [2] [a]).
However, except in limited circumstances not applicable here, "the court may at anytime prior to the entering of a finding [that the respondent is a juvenile delinquent]. . . order that the proceeding be 'adjourned in contemplation of dismissal' "(Family Ct Act § 315.3 [1]). "An adjournment in contemplation of dismissal is anadjournment of the proceeding, for a period not to exceed six months, with a view toultimate dismissal of the petition in furtherance of justice" (id.). "Upon issuingsuch an order, providing such terms and conditions as the court deems appropriate, thecourt must release the respondent" (id.).
"Rules of court shall define the permissible terms and conditions which may beincluded in an order that the proceeding be adjourned in contemplation of dismissal; suchpermissible terms and conditions may include supervision by the probation service"(Family Ct Act § 315.3 [2]; see 22 NYCRR 205.24 [a] [setting forth termsand conditions applicable to an order adjourning a proceeding in contemplation ofdismissal]).
When a proceeding has been adjourned in contemplation of dismissal, "upon ex partemotion by the presentment agency, or upon the court's own motion, made at the time theorder is issued or at any time during its duration, the court may restore the matter to thecalendar" (Family Ct Act § 315.3 [1]). "If the proceeding is not restored, thepetition is, at the expiration of the order, deemed to have been dismissed by the court infurtherance of justice" (Family Ct Act § 315.3 [1]; see Matter of Cleveland R., 14AD3d 568, 569 [2005]).
The Family Court has broad discretion in determining whether to adjourn aproceeding in contemplation of dismissal (see Matter of Gabriel C., 90 AD3d 752, 752-753 [2011]).Although, as it is often stated, a respondent is not entitled to an adjournment incontemplation of dismissal merely because this was his or her "first brush with the law"(Matter of Melissa B., 49AD3d 536, 537 [2008]; seeMatter of Jesus S., 104 AD3d 694 [2013]), a respondent's criminal anddisciplinary history is nevertheless relevant to a court's discretionary determination ofwhether to adjourn a proceeding in contemplation of dismissal (see e.g. Matter of Teriyana A.Mc., 100 AD3d 902, 902 [2012]; Matter of Gabriel C., 90 AD3d at752-753; Matter of TyvanB., 84 AD3d 462, 462 [2011]). Other relevant factors include, but are notnecessarily limited to, a respondent's history of drug or alcohol use (see Matter ofTeriyana A. Mc., 100 AD3d at 902), a respondent's association with gang activity(see id.), a respondent's academic and school attendance record (see Matter of Liston J., 81AD3d 648, 649 [2011]), the nature of the underlying incident (see Matter of Uriah D., 74AD3d 1194, 1195 [2010]), a respondent's decision to accept responsibility for his orher actions (see Matter of Liston J., 81 AD3d at 649), any recommendationsmade in a probation or mental health report (see Matter of Julissa R., 30 AD3d 526, 527 [2006]), thedegree to which the respondent's parent or guardian is involved in the respondent's homeand academic life (see Matter of Tyvan B., 84 AD3d at 462), and the ability ofthe respondent's parent or guardian to provide adequate supervision (see Matter of Justin CharlesH., 9 AD3d 316, 317 [2004]).
Here, the Family Court improvidently exercised its discretion when it denied theappellant's request for an order adjourning the proceeding in contemplation of dismissalpursuant to Family Court Act § 315.3 (1). This proceeding constituted theappellant's first contact with the court system, he took responsibility for his actions, andthe record demonstrates that he had learned from his mistakes. There is no indication thatthe appellant's father failed to provide adequate supervision and, in fact, the recorddemonstrates his active and positive role in the appellant's home and school life. Underthe circumstances, including the appellant's commendable academic and schoolattendance record, his association with a positive peer group, and the minimal risk that heposes to the community, an adjournment in contemplation of dismissal was warranted(see Family Ct Act § 315.3 [1]; Matter of Teriyana A. Mc., 100AD3d at 902; Matter of Tyvan B., 84 AD3d at 462; Matter of Justin CharlesH., 9 AD3d at 317). Accordingly, we remit the matter to the Family Court, KingsCounty, for an adjournment of the proceeding in contemplation of dismissal. Balkin, J.P.,Hall, Lott and Miller, JJ., concur.