Opinion
January 19, 1967
Appeal from the Erie Family Court.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Matter of CELLI: Order unanimously reversed and new trial granted. Memorandum: Appellant has been adjudicated a juvenile delinquent and committed to an institution. Pertinent here is the legislative declaration "that counsel is often indispensible to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition" (Family Ct. Act, § 241). Appellant (a 15-year-old youth) and his parents were advised by the court of the right to counsel. The father expressed a desire therefor and a law guardian should have been named without further ado. Instead, the court in substance pressured the father into waiving counsel for his son. Among other things the court stated: "Mr. Celli, you may get a lawyer, if you wish, but I will tell you frankly, that a lawyer will not change my mind. When I find out about the case I will make my own decision." This the court did with celerity. After adjudging appellant a juvenile delinquent the court stated that it would have a probation investigation. Immediately thereafter, however, the boy was committed to Industry for not more than 18 months. The court was correct in its first ruling and upon the facts here presented should have awaited a probation report before proceeding with the so-called dispositional hearing. (Family Ct. Act, §§ 746, 749.) The new trial should be held before another Judge of Erie County Family Court. Matter of Lahrs: Order unanimously reversed and new trial granted. Memorandum: In the interests of justice a new trial is required. (See Memorandum in Matter of Celli, decided herewith.)