Opinion
February 20, 1973
Appeal from an order of the Family Court, Kings County, dated March 28, 1972, which adjudged appellant to be a juvenile delinquent and directed that he be placed in the custody of Division for Youth for 18 months. Order affirmed. The minutes of the fact-finding hearing disclose that sometime prior to the beginning of the hearing (but apparently in the presence of the law guardian) the trial court was informed by a probation officer that this was a "Training School" case. The court denied a motion by the law guardian to disqualify itself and that denial is claimed to be error. Subdivision (b) of section 746 FCT of the Family Court Act provides that probation reports may not be furnished to the court prior to the completion of a fact-finding hearing. Similar provisions appear in other parts of the Family Court Act (§ 835 [family offense proceedings]; § 1047 [child protective proceedings]). It is thus the clear policy of the law that the probation service should not communicate reports to the court concerning the alleged delinquent until the fact-finding hearing is completed. Any practice tending to weaken that policy should not be encouraged. Even though the court may not be in fact influenced by what it hears, it is the appearance of prejudice against which the policy is directed; and the violation of the statute, albeit inadvertent, should be avoided. However, the evidence on this record is altogether convincing in establishing the delinquent conduct of appellant and for that reason the action of the probation officer should not be considered as reversible error. Hopkins, Acting P.J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.