Opinion
2018–04325 2018–04866 Docket No. D–22036–17
01-09-2019
In the MATTER OF RICHARD S. (Anonymous), Appellant.
Larry S. Bachner, New York, NY, for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Nwamaka Ejebe of counsel), for respondent.
Larry S. Bachner, New York, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Nwamaka Ejebe of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further, ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the order of fact-finding is vacated, and the matter is remitted to the Family Court, Queens County, for further proceedings on the petition.
The appellant admitted in his allocution that he took $5 from another boy at school. The appellant stated that the boy had given the appellant's friend a $10 bill and that the friend gave the appellant $5. The appellant's foster care case planner was present at the allocution but was not questioned. In an order of fact-finding dated December 8, 2017, the Family Court found that the appellant committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the fourth degree. In an order of disposition dated February 27, 2018, the court adjudicated the appellant a juvenile delinquent and placed him in the custody of the Commissioner of Social Services of the County of Queens for a period of 18 months, with a minimum of 6 months in a residential facility.
On appeal, the appellant contends that the allocution conducted at the fact-finding hearing was inadequate. The appellant argues that the Family Court did not elicit a sufficient factual basis to support his admission to the allegation in the petition that he committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the fourth degree. The appellant further argues that the court erred in failing to obtain an allocution from the foster care case planner.
The appellant did not move to withdraw his admission on the grounds raised on appeal (see Matter of David H., 88 A.D.3d 710, 711, 931 N.Y.S.2d 508 ; Matter of Stella F., 56 A.D.3d 668, 669, 868 N.Y.S.2d 235 ). However, this is one of the " ‘rare case[s] ... where the [appellant's] recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [appellant's] guilt,’ [which] fall[s] into the narrow exception to the preservation requirement" ( Matter of Stella F., 56 A.D.3d at 669, 868 N.Y.S.2d 235, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [citation omitted] ). In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived (see Matter of Alexander B., 126 A.D.3d 533, 534, 5 N.Y.S.3d 423 ; Matter of Daquan BB., 83 A.D.3d 1281, 1282, 920 N.Y.S.2d 835 ; Matter of Tyler D., 64 A.D.3d 1243, 1243, 881 N.Y.S.2d 787 ).
Turning to the merits, the appellant's allocution failed to provide the factual basis to establish that he committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the fourth degree. The appellant's allocution indicated both that he took $5 from the boy and also that the boy voluntarily gave the appellant's friend $10, of which the appellant received half. The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy's person within the meaning of Penal Law § 155.30(5). Thus, the court "did not ‘elicit a sufficient factual basis to support [the appellant's] admission’ " ( Matter of Kameron VV., 156 A.D.3d 1272, 1274, 68 N.Y.S.3d 210, quoting Matter of Barry H., 24 A.D.3d 1137, 1138, 807 N.Y.S.2d 440 ; see Matter of Schlena P., 98 A.D.2d 750, 750, 469 N.Y.S.2d 459 ).
In addition, the appellant's admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant's care, "that (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact-finding hearing, and (c) he [was] aware of the possible specific dispositional orders" ( Family Ct Act § 321.3[1] ; see Matter of Alexander B., 126 A.D.3d at 534, 5 N.Y.S.3d 423 ; Matter of Alexis L., 45 A.D.3d 688, 689, 845 N.Y.S.2d 436 ; Matter of Bruce K., 306 A.D.2d 479, 480, 761 N.Y.S.2d 513 ; Matter of Neftaly R., 283 A.D.2d 579, 580, 724 N.Y.S.2d 894 ; Matter of Shantique F., 223 A.D.2d 590, 591, 636 N.Y.S.2d 407 ).
Accordingly, the order of disposition must be reversed, the order of fact-finding vacated, and the matter remitted to the Family Court, Queens County, for further proceedings on the petition (see e.g. Matter of David T., 59 A.D.3d 631, 632, 873 N.Y.S.2d 706 ; Matter of Alexis L., 45 A.D.3d 688, 689, 845 N.Y.S.2d 436 ; Matter of Franklin M., 11 A.D.3d 469, 469, 782 N.Y.S.2d 783 ).
RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.