Opinion
2012-10-11
In re Besjon B., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency
Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for presentment agency.
Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for presentment agency.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about January 20, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of assault in the third degree and menacing in the third degree, and placed him on probation for a period of nine months, unanimously reversed, as an exercise of discretion in the interest of justice, without costs, the delinquency finding and dispositional order vacated, and the matter remanded to Family Court with the direction to order an adjournment in contemplation of dismissal pursuant to Family Court Act § 315.3(1), nunc pro tunc to January 20, 2012.
The court improvidently exercised its discretion when it adjudicated appellant a juvenile delinquent 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 have sufficed to serve the needs of appellant and society ( see e.g. Matter of Tyvan B., 84 A.D.3d 462, 923 N.Y.S.2d 60 [2011] ).
Appellant was 11 years old at the time of the incident, which was his only conflict with the law. The circumstances of the assault were not particularly egregious. Although appellant's school record had been unsatisfactory, it had greatly improved by the time of the disposition. An ACD with appropriate conditions would have provided adequate supervision, and the nine-month term of probation that the court imposed was unnecessary.
In light of this determination, we find it unnecessary to discuss any of the other issues raised by appellant.