In re Cheryl P.

175 A.D.3d 1298

109 N.Y.S.3d 310

In the MATTER OF CHERYL P. (Anonymous), Appellant.

2018–08033

Docket No. D–652–18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 28, 2019

September 11, 2019

Andrew W. Szczesniak, White Plains, NY, for appellant.

Langdon C. Chapman, County Attorney, Goshen, N.Y. (Sandra P. Williams of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Cheryl P. appeals from an order of disposition of the Family Court, Orange County (Christine P. Krahulik, J.), entered June 6, 2018. The order of disposition, inter alia, adjudicated Cheryl P. a juvenile delinquent and, upon her consent, placed her on probation for a period of two years. The appeal brings up for review (1) an order of fact-finding of the Family Court, Ulster County (Keri E. Savona, J.), dated October 30, 2017, which, upon Cheryl P.'s purported admission, found that she committed an act which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree ( Penal Law § 145.00[3] ), (2) an order of the Family Court, Orange County (Christine P. Krahulik, J.), dated February 22, 2018, which, in effect, upon the granting of Cheryl P.'s application to vacate her admission, restored the matter to the calendar and transferred the proceeding to the Family Court, Ulster County, and (3) an order denominated as an order for change of venue (post-fact-finding hearing) of the Family Court, Ulster County (Keri E. Savona, J.), dated February 23, 2018, purporting to set aside the order of the Family Court, Orange County, dated February 22, 2018, and, in effect, reinstating Cheryl P.'s admission and transferring the proceeding to the Family Court, Orange County, for disposition.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the order of fact-finding of the Family Court, Ulster County, dated October 30, 2017, the order of the Family Court, Orange County, dated February 22, 2018, and the order for change of venue (post-fact-finding hearing) of the Family Court, Ulster County, dated February 23, 2018, are vacated, and the petition is dismissed.

In June 2017, a juvenile delinquency petition (hereinafter the petition) was filed in the Family Court, Ulster County, alleging that, in March 2017, the appellant, a minor, committed an act which, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree ( Penal Law § 145.00[3] ). The petition alleged that the appellant punched and broke a window at a location in Esopus, Ulster County. At the time of the incident, the appellant was in the custody of the Orange County Department of Social Services (hereinafter DSS). Although the petition charged the appellant with violating Penal Law § 145.00(3), which includes the elements of reckless conduct and damage to property exceeding $250, the petition recites the intentional conduct language of Penal Law § 145.00(1).

After several court proceedings in the Family Court, Ulster County, at which the appellant did not appear, at the October 30 proceeding, the appellant appeared by telephone; the attorney for the appellant was present in court, as was the attorney for the Ulster County Attorney's Office. At that proceeding, no one from DSS appeared and the appellant's mother was not present in court. At that time, the court informed the appellant of her rights and, thereafter, the appellant admitted that she punched a window, causing it to break. The appellant also testified that she did not intend to break the window, that she did not think it would break, and that she did not think she had hit it that hard.

Thereafter, the Family Court, in an order of fact-finding dated October 30, 2017 (hereinafter the October 30 fact-finding order), determined that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree ( Penal Law § 145.00[3] ), and transferred the proceeding to the Family Court, Orange County, for disposition. At the proceeding before the Family Court, Orange County, upon the appellant's application, in an order dated February 22, 2018, the court purported to vacate the appellant's admission, restored the matter to the calendar, and transferred the proceeding back to the Family Court, Ulster County, for a fact-finding hearing (hereinafter the Orange County February 2018 order). The next day, in an order denominated an order for change of venue (post-fact-finding hearing), dated February 23, 2018 (hereinafter the Ulster County February 2018 order), the Family Court, Ulster County, purported to set aside the Orange County February 2018 order; however, the court considered an oral application by counsel for the appellant to vacate the admission, but elicited no additional testimony or evidence. The court then denied the appellant's application to vacate her admission and, in effect, reinstated the admission, and again transferred the proceeding to the Family Court, Orange County, for disposition.

Thereafter, in the order of disposition appealed from, upon the appellant's purported admission made at the proceeding in the Family Court, Ulster County, on October 30, 2017 (hereinafter the October 30 proceeding), the Family Court, Orange County, adjudicated the appellant a juvenile delinquent and, upon her consent, placed her on probation for a period of two years. The appellant appeals, and we reverse.

Although the Family Court, Orange County, had no authority to vacate the appellant's admission that she made at the October 30 proceeding in the Family Court, Ulster County (see e.g. Hrouda v. Winne , 77 A.D.2d 62, 64–65, 432 N.Y.S.2d 643 ; Empire Mut. Ins. Co. v. West , 22 A.D.2d 938, 938, 256 N.Y.S.2d 108 ), the Family Court, Ulster County, likewise was without authority to "set aside" the Orange County February 2018 order which purported to vacate the appellant's admission (see e.g. Hrouda v. Winne , 77 A.D.2d at 64–65, 432 N.Y.S.2d 643 ; Empire Mut. Ins. Co. v. West , 22 A.D.2d at 938, 256 N.Y.S.2d 108 ). As a result, each of these orders must be vacated (see Hrouda v. Winne , 77 A.D.2d at 64–65, 432 N.Y.S.2d 643 ; Empire Mut. Ins. Co. v. West , 22 A.D.2d at 938, 256 N.Y.S.2d 108 ).

Irrespective of the procedural irregularities of the matter, we agree with the appellant's contention that her admission was improperly obtained and accepted by the Family Court, Ulster County. Specifically, the appellant's admission taken at the October 30 proceeding was legally defective and the October 30 order of fact-finding must be vacated. Although the Family Court, Ulster County, advised the appellant of her rights prior to accepting an admission, the court failed to obtain an allocution from a parent or a person legally responsible for the appellant with regard to their understanding of any rights the appellant may be waiving as a result of her admission (see Family Ct. Act § 321.3[1] ; Matter of Nikim M. , 144 A.D.3d 424, 424–425, 41 N.Y.S.3d 474 ; Matter of Alexander B. , 126 A.D.3d 533, 534, 5 N.Y.S.3d 423 ). The appellant appeared telephonically even though there is no provision under article 3 of the Family Court Act authorizing the appearance by telephone of a minor in a juvenile delinquency proceeding, and the only persons in court that day were the appellant's attorney and the attorney representing the Ulster County Attorney's Office.

Moreover, even if the procedure...