Opinion
July 2, 1974
Order of the Family Court, New York County, entered January 7, 1974, as modified by order of January 9, 1974, adjudicating appellant a juvenile delinquent and committing him pursuant to section 758 FCT of the Family Court Act to the custody of the New York State Division for Youth until his 18th birthday on April 6, 1976, unanimously modified, on the law and the facts, to strike the limiting conditions of the commitment, and otherwise affirmed, without costs and without disbursements. The Trial Judge's concern with the parole of the appellant by the State Division for Youth after six months in a previous placement was obviously well founded considering the appellant's subsequent involvements with the law and the fact that he has absconded during the pendency of this appeal. Nonetheless, the State Division for Youth pursuant to subdivision 1 of section 523 Exec. of the Executive Law has the ultimate responsibility for determining a "release [parole] to be in the best interest of the child". Any implied condition in the commitment order, pursuant to section 758 FCT of the Family Court Act, to the contrary requiring application by the State Division for Youth to the court for modification of the order is not mandatory but precatory, and, as such, is justified in the nature of the situation.
Concur — Markewich, J.P., Kupferman, Murphy, Steuer and Tilzer, JJ.