Opinion
March 18, 1993
Appeal from the Family Court of Albany County (Tobin, J.).
Family Court's order of disposition following respondent's adjudication as a juvenile delinquent placed respondent for a period of one year with the Division for Youth. Family Court Act § 353.3 (3) provides that, when placing a juvenile with the Division, "the court shall * * * authorize the [D]ivision to do one of the following:" (a) placement in a secure facility, (b) placement in a school or center pursuant to Executive Law §§ 510 and 511, or (c) placement in a youth center pursuant to Executive Law § 502 (emphasis supplied). Contrary to the statute's mandate, however, Family Court did not make a specific choice but, instead, authorized the Division to place respondent pursuant to any of the three alternatives. In addition, although Family Court specifically noted, prior to listing the three alternatives, that respondent should be placed in a "title III" facility (Executive Law art 19-G, tit 3), only the first two alternatives listed refer to title III placement while the third alternative (placement in a youth center pursuant to Executive Law § 502) refers to placement in a "title II" facility (Executive Law art 19-G, tit 2) (see, Sobie, Practice Commentary, McKinney's Cons Laws of N.Y., Book 29A, Family Ct Act § 353.3, at 532). Because of this failure to specify in which type of facility respondent would be placed (see, Matter of Kyle S., 64 A.D.2d 666, 667), as well as the inconsistency in the court's order of disposition, we withhold decision and remit the matter to Family Court for a clarification of its order.
As a final matter, we note that, as part of an agreement which adjourned in contemplation of dismissal a third juvenile delinquency petition then pending against him, respondent specifically agreed to the condition in the order of disposition that he would not be released early unless by permission of the court. As such, he has waived any argument with respect thereto.
Weiss, P.J., Mikoll, Mercure, Mahoney and Casey, JJ., concur. Ordered that the decision is withheld, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision.