Opinion
September 8, 1986
Appeal from the Family Court, Suffolk County (Auperin, J.).
On the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, said application is referred to Presiding Justice Mollen and leave to appeal is granted by Presiding Justice Mollen.
Order reversed, on the law, without costs or disbursements, motion granted, orders dated April 30, 1984, and March 30, 1984, and plea of guilty vacated, and matter remitted to the Family Court, Suffolk County, for a fact-finding hearing.
The record reveals that the Family Court improperly accepted the appellant's guilty plea without first informing him of his right to a fact-finding hearing, and without ascertaining that he was voluntarily waiving such right and that he was aware of the resulting possible dispositional order, all in violation of Family Court Act § 321.3 (1). Nor did the court properly notify the appellant of his constitutional rights to a hearing, to confront witnesses, and to remain silent or obtain a knowing and voluntary waiver of those rights (see, Matter of Steven W., 75 A.D.2d 756; Matter of John R., 71 A.D.2d 896; Matter of Theodore F., 47 A.D.2d 945). The court also failed, as required by Family Court Act § 341.2 (3) and case law, to make "reasonable and substantial effort[s]" to secure the presence of the appellant's mother in court during these proceedings or at least to inquire into the efforts made to obtain her presence or notify her of the proceedings against her son (see, Matter of John D., 104 A.D.2d 885). These omissions clearly required the vacatur of the order adjudicating the appellant to be a juvenile delinquent.
In addition to the aforementioned deficiencies, the record indicates that the appellant was deprived of the effective assistance of counsel during the juvenile delinquency proceedings due to his counsel's two conflicts of interest. In the first instance, the appellant's counsel had also been retained by the residential facility, where the appellant had been voluntarily placed in foster care and where the alleged incident of sexual abuse occurred, to represent the facility in the proceedings against the appellant. The victim of the sexual abuse was also a resident of the facility and it was expected that employees of the facility would be testifying at the fact-finding hearing. Additionally, it is significant that the facility had expressed its disinclination to retain the appellant as a resident in view of his alleged participation in the incident. A second source of counsel's conflict of interest arises from the fact that he also represented the appellant's two alleged accomplices whose statements concerning the incident of sexual abuse differed from that of the appellant. Although counsel did inform the court of his conflicts of interest at the arraignment of the three alleged juvenile delinquents, no action was taken by the court to assign other counsel. Moreover, it does not appear that counsel discussed his conflicts with the appellant or his parents, nor did the court inquire on the record as to whether each alleged juvenile delinquent was aware of counsel's conflict and the risks involved in joint representation (see, e.g., People v Macerola, 47 N.Y.2d 257; Matter of Jeffrey M., 62 A.D.2d 858).
Under these circumstances, the court should have exercised its inherent power to relieve a party from a judgment "for sufficient reason, in furtherance of justice" (Ladd v Stevenson, 112 N.Y. 325, 332; see, Nicholas v Consolidated Edison Co., 100 A.D.2d 957). The court erred in holding that it could not vacate the order of disposition due to the appellant's failure to allege any grounds for vacatur as set forth in CPLR 5015 and Family Court Act § 355.1. These statutes merely codify some of the principal grounds upon which the courts can exercise their inherent power to vacate, but do not set forth an exhaustive list or in any way limit this power (see, Mejia v Mejia, 82 A.D.2d 875; McMahon v City of New York, 105 A.D.2d 101). As a result, the dispositional and fact-finding orders herein must be vacated and a fact-finding hearing ordered at which the appellant should be represented by independent counsel. Mollen, P.J., Weinstein, Lawrence and Kunzeman, JJ., concur.