Opinion
2014-11-21
In the Matter of KAYLA F., Respondent–Appellant. Monroe County Presentment Agency, Petitioner–Respondent.
Brian Strait, Attorney for the Child, Rochester, for Respondent–Appellant. Merideth H. Smith, County Attorney, Rochester (Brett Granville of Counsel), for Petitioner–Respondent.
Brian Strait, Attorney for the Child, Rochester, for Respondent–Appellant. Merideth H. Smith, County Attorney, Rochester (Brett Granville of Counsel), for Petitioner–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
Respondent appeals from an amended order adjudicating her a juvenile delinquent based upon the finding that she committed an act that, if committed by an adult, would constitute the crime of assault in the third degree (Penal Law § 120.00[2] ). Respondent contends that Family Court abused its discretion in denying her motion pursuant to Family Court Act § 311.4(2) to substitute a finding that she is a person in need of supervision (PINS) for a finding that she is a juvenile delinquent, inasmuch as she demonstrated no danger to the community at large and could have received the same placement under a PINS disposition. We agree ( see Matter of Devon R., 278 A.D.2d 15, 15, 717 N.Y.S.2d 145, lv. denied96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206). A PINS is “[a] person less than eighteen years of age who [, inter alia,] ... is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child's care” (Family Court Act § 712[a]; see Matter of Gabriela A., 103 A.D.3d 888, 889, 962 N.Y.S.2d 234, affd.23 N.Y.3d 155, 989 N.Y.S.2d 624). Under the circumstances of this case, we conclude that respondent's conduct was consistent with PINS behavior, not with juvenile delinquency ( see Matter of Jeffrey C., 47 A.D.3d 433, 434, 849 N.Y.S.2d 517, lv. denied10 N.Y.3d 707, 858 N.Y.S.2d 654, 888 N.E.2d 396; see also Matter of Daniel I., 57 A.D.3d 666, 668, 871 N.Y.S.2d 183). We therefore modify the amended order by substituting a finding that respondent is a person in need of supervision for the adjudication that she is a juvenile delinquent. We have reviewed respondent's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the amended order so appealed from is unanimously modified on the facts and the law by substituting for respondent's adjudication as a juvenile delinquent a finding that she is a person in need of supervision and as modified the amended order is affirmed without costs.