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Matter of McC

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
223 A.D.2d 709 (N.Y. App. Div. 1996)

Opinion

January 29, 1996

Appeal from the Family Court, Orange County (Bivona, J.).


Ordered that the order of disposition is affirmed, without costs or disbursements.

The appellant claims that the Family Court should have dismissed the proceeding because he was deprived of his right to a speedy dispositional hearing in violation of Family Court Act § 350.1.

The record evinces that a timely dispositional hearing was scheduled for January 4, 1995. However, on that date, the appellant's counsel requested, and was granted, an adjournment so as to permit him to procure a report from the appellant's primary counselor, the Clinical Director of the Orange County Department of Mental Health, which he represented was directly relevant to the court's disposition of the matter. When asked if he deemed acceptable a continuance of the proceedings to February 15, 1995, the appellant's counsel responded "Sure". On February 15, 1995, the appellant's counsel supplied the subject report and also moved to dismiss the petition on the ground that more than 80 days had elapsed from the date of the fact-finding order. The Family Court noted that counsel had himself requested the adjournment and, consequently, ruled that justice did not require dismissal of the petition. We affirm.

The Court of Appeals has specifically rejected a per se rule of dismissal for "speedy disposition lapses" ( Matter of Jose R., 83 N.Y.2d 388, 394). In rejecting a per se rule of dismissal, the court enunciated that the timetable provisions for conducting dispositional hearings which are contained in Family Court Act § 350.1 serve as "primary protocols", but do not demarcate the exclusive range of authority for the Family Court ( Matter of Jose R., supra, at 394). Furthermore, the Court noted that "[e]ven assuming an overarching speedy dispositional phase right does pertain, the Family Court Act does not correspondingly direct dismissal relief for a lapse in that regard" ( Matter of Jose R., supra, at 393-394). As such, Family Court Judges possess "flexible authority" in utilizing their adjournment and monitoring powers and, "[i]n unusual circumstances where the juvenile is not solely responsible for the delay, the Family Court retains the authority to dismiss" ( Matter of Jose R., supra, at 394).

Given the circumstances evident on this record, we find that the Family Court properly denied the motion to dismiss the petition. It is clear that the dispositional hearing would have been timely held on January 4, 1995, had it not been for the appellant's request for an adjournment.

We have examined the appellant's remaining contentions and find them to be without merit. Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.


Summaries of

Matter of McC

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
223 A.D.2d 709 (N.Y. App. Div. 1996)
Case details for

Matter of McC

Case Details

Full title:In the Matter of JOHN McC., a Person Alleged to be a Juvenile Delinquent…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 29, 1996

Citations

223 A.D.2d 709 (N.Y. App. Div. 1996)
637 N.Y.S.2d 427

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