Summary
In Matter of Kwane M. (121 A.D.2d 635 [2d Dept 1986]) and Matter of Carlief V. (121 A.D.2d 640 [2d Dept 1986]), it was held that dismissal of a delinquency petition in furtherance of justice because the respondent was already placed on a prior delinquency petition and therefore posed no threat to the community and was receiving the necessary supervision, was improper.
Summary of this case from Matter of Terrence TOpinion
June 23, 1986
Appeal from the Family Court, Kings County (DePhillips, J.).
Order reversed, without costs or disbursements, and matter remitted to the Family Court, Kings County, for a fact-finding hearing on the petition pursuant to Family Court Act, article 3, part 4.
After admitting to an act which, if committed by an adult would have constituted the crime of assault in the third degree, the respondent was placed in a DFY Title III facility for 12 months. On that same day, the respondent was charged in a second petition, inter alia, with acts which would constitute assault in the third degree, stemming from an incident in which the respondent hit the victim in her mouth with his fist, resulting in an injury which required stitches. The respondent moved to have the second petition dismissed in furtherance of justice pursuant to Family Court Act § 315.2 on the ground that he was already placed and, therefore, was no longer a threat to the community and was receiving the necessary supervision. The Family Court granted the motion to dismiss, based upon the respondent's argument.
We reverse. A delinquency petition may be dismissed in furtherance of justice pursuant to Family Court Act § 315.2 (1) upon the court's consideration of the numerous factors contained therein. At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal (People v. Rickert, 58 N.Y.2d 122, 128). Although the community may be adequately protected from a juvenile at the point in time that the petition is dismissed, this, by itself, is not sufficiently compelling to support a rule requiring the per se dismissal of a second petition. The respondent shows a propensity towards violent behavior. In light of this, a fact-finding hearing must be held so that the protection of the community is ensured and the respondent's placement needs are explored (see, Matter of Carlief V., 121 A.D.2d 640 [decided herewith]; Matter of Phillip S., 117 Misc.2d 595; Matter of Patrick B.P., 103 Misc.2d 1102). Weinstein, J.P., Niehoff, Kunzeman and Spatt, JJ., concur.