Opinion
697 CAF 12-01583
06-12-2015
In the Matter of JOHNATHAN B.M., Respondent–Appellant. Steuben County Attorney, Petitioner–Respondent.
Wendy S. Sisson, Attorney for the Child, Geneseo, for Respondent–Appellant. Alan P. Reed, County Attorney, Bath, for Petitioner–Respondent.
Wendy S. Sisson, Attorney for the Child, Geneseo, for Respondent–Appellant.
Alan P. Reed, County Attorney, Bath, for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.
Opinion
MEMORANDUM:On appeal from an order of disposition placing him in the custody of the Commissioner of Social Services of Steuben County for a period of one year, respondent contends that his admission to acts that, if committed by an adult, would constitute the crime of forcible touching was defective because Family Court failed to comply with Family Court Act § 321.3(1). We agree. That section prohibits a court from consenting to the entry of an admission unless it has ascertained, through an allocution of the respondent and his or her parent, that respondent is aware of, inter alia, “ ‘all possible dispositional alternatives' ” (Matter of Sean R.P., 24 A.D.3d 1200, 1201, 807 N.Y.S.2d 499, lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1172 ). “ ‘The statute's requirements ... are mandatory and nonwaivable,’ ” and preservation therefore is not required (id. ). Here, respondent's admission was defective inasmuch as “the court failed to ascertain that respondent and his parents were aware of ‘all possible dispositional alternatives' ” (id. ), such as the possibilities of a conditional discharge or an extension of placement (see Matter of Melvin A., 216 A.D.2d 227, 227–228, 628 N.Y.S.2d 698 ; see also Matter of Andrew J.S., 48 A.D.3d 1224, 1225, 849 N.Y.S.2d 923 ; Matter of Franklin M., 11 A.D.3d 469, 469–470, 782 N.Y.S.2d 783 ; Matter of Joseph P., 229 A.D.2d 318, 318, 645 N.Y.S.2d 468 ; cf. Matter of Daquan BB., 83 A.D.3d 1281, 1282–1283, 920 N.Y.S.2d 835 ; Matter of Eric CC., 298 A.D.2d 632, 633, 748 N.Y.S.2d 186 ). “Because the period of respondent's placement has expired, the petition must be dismissed” (Sean R.P., 24 A.D.3d at 1201, 807 N.Y.S.2d 499 ; see Matter of Alex Z., 82 A.D.3d 995, 996, 918 N.Y.S.2d 771 ; cf. Matter of Dakota L.K., 70 A.D.3d 1334, 1335, 895 N.Y.S.2d 625 ; Matter of Tyler D., 64 A.D.3d 1243, 1243, 881 N.Y.S.2d 787 ; Franklin M., 11 A.D.3d at 470, 782 N.Y.S.2d 783 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
In view of our determination, we do not address respondent's remaining contentions concerning the factual sufficiency of the admission or the disposition.