Opinion
No. 637.
May 26, 2009.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about May 28, 2008, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime of assault in the third degree, and imposed a conditional discharge for a period of 12 months, unanimously reversed, on the facts and in the exercise of discretion, without costs, the finding of juvenile delinquency and order of conditional discharge vacated and the matter remanded with the direction to order an adjournment in contemplation of dismissal (ACD) pursuant to Family Court Act § 315.3 (1).
Tamara A. Steckler, The Legal Aid Society, New York (Judith Harris of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for presentment agency.
Before: Friedman, J.P., Sweeny, Nardelli, Acosta and Richter, JJ.
Imposition of a juvenile delinquency adjudication was an improvident exercise of discretion, because it was not "the least restrictive available alternative" (Family Ct Act § 352.2 [a]). Rather, an ACD, with such counseling as Family Court deems appropriate, would adequately serve the needs of appellant and society in this case ( see e.g. Matter of Jeffrey C, 47 AD3d 433, lv denied 10 NY3d 707). The court acknowledged that there was no need for protection of the community from appellant, that when appellant injured his friend he did so recklessly rather than intentionally, that this incident was an isolated outburst, and that appellant had expressed remorse. Furthermore, the record establishes that appellant had a good school record and home environment, and did not manifest any other behavior problems.