In re Michael M.

165 A.D.3d 1145

86 N.Y.S.3d 550

In the MATTER OF MICHAEL M. (Anonymous), Jr., appellant.

2016–08588

2018–01093

Docket No. E–2611–16

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

Argued—September 25, 2018

October 24, 2018

The Legal Aid Society, New York, N.Y. (Dawne Mitchell and Raymond E. Rogers of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and MacKenzie Fillow of counsel), for respondent.

RUTH C. BALKIN, J.P., SANDRA L. SGROI, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding, Michael M., Jr., appeals from (1) an order of disposition of the Family Court, Queens County (Robert I. Caloras, J.), dated June 30, 2016, and (2) an order of the same court dated September 19, 2016. The order of disposition adjudicated the appellant a juvenile delinquent and placed him in nonsecure detention for a period of 18 months. The order dated September 19, 2016, denied the appellant's motion pursuant to Family Court Act § 355.1 to vacate the order of disposition and for a new fact-finding hearing. The appeal from the order of disposition brings up for review an order of fact-finding of the same court dated April 27, 2016, which, after a hearing, found that the appellant committed acts, which, if committed by an adult, would have constituted the crimes, inter alia, of rape in the first degree (two counts), sexual abuse in the first degree (two counts), and sexual misconduct (two counts).

ORDERED that the appeal from so much of the order of disposition as placed the appellant in nonsecure detention for a period of 18 months is dismissed as academic, without costs or disbursments; and it is further,

ORDERED that the notice of appeal from the order dated September 19, 2016, is deemed to be an application for leave to appeal from that order, and leave to appeal is granted (see Family Ct. Act § 1112[a] ); and it is further,

ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crimes of sexual misconduct as alleged in counts seven and thirteen of the petition, and substituting therefor a provision dismissing the seventh and thirteenth counts of the petition; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the fact-finding order is modified accordingly; and it is further,

ORDERED that the order dated September 19, 2016, is affirmed, without costs or disbursements.

The appellant was adjudicated a juvenile delinquent and placed in nonsecure detention for a period of 18 months, upon a finding, after a hearing, that he committed acts, which, if committed by an adult, would have constituted the crimes, inter alia, of rape in the first degree (two counts), sexual abuse in the first degree (two counts), and sexual misconduct (two counts). The appellant thereafter moved pursuant to Family Court Act § 355.1 to vacate the order of disposition and for a new fact-finding hearing, based on newly discovered evidence. The motion was denied.

The appeal from so much of the order of disposition as placed the appellant in a nonsecure detention facility for a period of 18 months has been rendered academic, as the period of placement has expired. However, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent, which brings up for review the fact-finding order, has not been rendered academic, as there may be collateral consequences resulting from the adjudication of delinquency (see Matter of Gregory R., 161 A.D.3d 1168, 74 N.Y.S.3d 511 ).

Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d...