Opinion
569 CAF 22-00826
06-30-2023
In the MATTER OF TIMAR P., Respondent-Appellant. Oneida County Attorney, Petitioner-Respondent; v. James B., Appellant.
SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS, FOR RESPONDENT-APPELLANT. JOHN J. RASPANTE, UTICA, FOR APPELLANT. DEANA D. GATTARI, ROME, FOR PETITIONER-RESPONDENT.
SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS, FOR RESPONDENT-APPELLANT.
JOHN J. RASPANTE, UTICA, FOR APPELLANT.
DEANA D. GATTARI, ROME, FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal by James B. is unanimously dismissed, the order is reversed on the law without costs and the matter is remitted to Family Court, Oneida County, for further proceedings on the petition.
Memorandum: In this juvenile delinquency proceeding pursuant to Family Court Act article 3, respondent and his father each appeal from an order of disposition that adjudicated respondent to be a juvenile delinquent and placed him in the custody of the Office of Children and Family Services for a period of 12 months. Even assuming, arguendo, that the father has standing to appeal the order, the father challenges only respondent's placement, and we conclude that his appeal is moot inasmuch as the placement has expired (see Matter of Oscar R.M. , 213 A.D.3d 855, 855, 183 N.Y.S.3d 546 [2d Dept. 2023] ; Matter of Alvin H. , 206 A.D.3d 1658, 1658-1659, 167 N.Y.S.3d 885 [4th Dept. 2022] ; Matter of Michael H. , 99 A.D.3d 1258, 1258, 951 N.Y.S.2d 458 [4th Dept. 2012] ).
Respondent's contention that he was denied his right to a speedy hearing is unpreserved for our review (see Matter of Dashawn R. , 114 A.D.3d 686, 686, 979 N.Y.S.2d 680 [2d Dept. 2014], lv denied 23 N.Y.3d 901, 2014 WL 1775994 [2014] ; Matter of Shellito D. , 226 A.D.2d 1075, 1076-1077, 641 N.Y.S.2d 949 [4th Dept. 1996] ), as is his contention that Family Court erred in considering hearsay evidence at the fact-finding hearing (see generally Matter of Jerome G. , 192 A.D.3d 1476, 1477, 140 N.Y.S.3d 826 [4th Dept. 2021], lv denied 37 N.Y.3d 906, 2021 WL 4098074 [2021] ). We decline to exercise our power to address those contentions as a matter of discretion in the interest of justice (see id. ).
Respondent contends that the court violated his constitutional and statutory right to be present at the fact-finding hearing. We agree, and we therefore reverse the order and remit the matter to Family Court for further proceedings on the petition. "[R]espondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings (see US Const 6th Amend; NY Const, art I, § 6 ; Family Ct Act § 341.2 [1] )" ( Matter of Arielle B. , 17 A.D.3d 1056, 1056, 794 N.Y.S.2d 241 [4th Dept. 2005] ). Respondents "may, however, waive the right to be present at such proceedings" ( id. ). " ‘In order to effect a voluntary, knowing and intelligent waiver, the [respondent] must, at a minimum, be informed in some manner of the nature of the right to be present at [the fact-finding hearing] and the consequences of failing to appear’ for that hearing" ( id. at 1056-1057, 794 N.Y.S.2d 241 ). Here, the court did not advise respondent that he had a right to be present at the fact-finding hearing and that the consequence of his failure to appear would be that the fact-finding hearing would proceed in his absence (see generally People v. Parker , 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ). We therefore conclude on this record that there is no voluntary, knowing, and intelligent waiver of respondent's right to be present at the hearing (see Arielle , 17 A.D.3d at 1057, 794 N.Y.S.2d 241 ; Matter of Anthony B. , 43 A.D.2d 688, 689, 350 N.Y.S.2d 426 [1st Dept. 1973] ; see also People v. Campbell , 209 A.D.2d 1042, 1042, 619 N.Y.S.2d 917 [4th Dept. 1994] ).
In light of our determination, we do not address respondent's remaining contentions.