Opinion
Argued May 14, 1999
June 21, 1999
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of the Family Court, Kings County (Porzio, J.), dated January 20, 1998, which dismissed the petition.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for appellant.
Betty A. Rugg, Baldwin, N.Y., for respondent.
FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed, without costs or disbursements, and the petition is reinstated.
The respondent and a corespondent (Latoya McD.) initially appeared in this matter on November 20, 1997. Pursuant to statute, absent certain permissible adjournments, the respondents' fact-finding hearing was to be commenced by January 19, 1998 (Family Ct Act § 340.1, [4]).
However, at a court appearance on January 9, 1998, all parties agreed to adjourn the matter to January 20, 1998, with both Law Guardians stipulating that this day would "be the 60th day" and waiving any claims based on the denial of a speedy fact-finding hearing through that date ( see, Family Ct Act § 310.2, 340.1 Fam. Ct. Act[2]).
As a result of a miscommunication between the assistant corporation counsel (hereinafter ACC) and the minor complainant's family, the complainant did not appear in court on the morning of January 20, 1998, when the trial was scheduled to begin. However, it appears from the record that the complainant would have appeared in court shortly after noon of that same day.
Nevertheless, at approximately 11:55 A.M., since the complainant had not yet appeared, the petitions against both respondents were dismissed on the ground that they had been denied speedy fact-finding hearings ( see, Family Ct Act § 310.2, 340.1 Fam. Ct. Act[2]).
Given that the ACC only sought an adjournment until the afternoon of January 20, 1998, which was still within the 60-day statutory period, the court's denial of this brief adjournment and dismissal of the petitions was an improvident exercise of discretion ( see, Matter of T. [James], 220 A.D.2d 352; Matter of J. [Bryant], 195 A.D.2d 463, 464). Even if the ACC had been required to demonstrate good cause for the adjournment, under these circumstances, we find that good cause was established ( cf., Matter of G. [Leonard], 209 A.D.2d 263, 264-265; Matter of M. [Michael], 201 A.D.2d 288).
Accordingly, we reinstate the petition against the respondent Iola C.