Opinion
858 CAF 02-00160
July 3, 2002.
Appeal from an order of Family Court, Livingston County (Cicoria, J.), entered January 2, 2002, which adjudicated respondent a juvenile delinquent.
CYNTHIA B. BRENNAN, LAW GUARDIAN, AUBURN, FOR RESPONDENT-APPELLANT.
DAVID J. MORRIS, COUNTY ATTORNEY, CALEDONIA (DENNIS S. COHEN OF COUNSEL), PETITIONER-RESPONDENT PRO SE.
Before: GREEN, J.P., HAYES, WISNER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed in furtherance of justice without costs and the petition is dismissed.
Memorandum:
Respondent was adjudicated a juvenile delinquent based upon Family Court's finding that he committed an act that, if committed by an adult, would constitute sexual misconduct as defined by section 130.20 of the Penal Law. The proof establishes that respondent had sexual intercourse with a 14-year-old girl who, by reason of her age, is deemed incapable of consent ( see § 130.05 [3] [a]). Upon our review of the record, however, we conclude that the petition should be dismissed in furtherance of justice ( see Family Ct Act § 315.2; Matter of Deborah C., 261 A.D.2d 138, 138-139). At the time of the act, respondent himself was only 15 years old, and the girl admitted that she initiated the encounter and willingly engaged in sexual intercourse. Nevertheless, only respondent was accused of sexual misconduct; the female participant was not charged. Under the circumstances, where respondent was only one year older than the female participant and "was no more at fault factually for his conduct than the female participant," we conclude that respondent's adjudication as a juvenile delinquent is "manifestly unfair," and we dismiss the petition in furtherance of justice ( Matter of Jessie C., 164 A.D.2d 731, 736, appeal dismissed 78 N.Y.2d 907; see People v. M.K.R., 166 Misc.2d 456, 463-464).