Opinion
2012-04-12
In re OSRIEL L., A Person Alleged to be a Juvenile Delinquent, Appellant.Presentment Agency.
Tamara A. Steckler, The Legal Aid Society, New York (Laura Dillon of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for presentment agency.
Tamara A. Steckler, The Legal Aid Society, New York (Laura Dillon of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for presentment agency.
Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about August 30, 2011, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 12 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 August 30, 2011.
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] ).
*842 Appellant, who was 12 years old at the time of the underlying offense and adjudication, had no prior record. Appellant also had no background of serious trouble at home, at school, or in the community. There are no indications that appellant ever used drugs or alcohol, or was affiliated with 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 probation department to monitor appellant's school attendance and observance of a curfew ( see e.g. Matter of Justin Charles H., 9 A.D.3d 316, 317, 780 N.Y.S.2d 13 [2004] ). We also note that appellant's mother voluntarily enrolled him in community counseling services while the case was pending.