Opinion
533937
12-22-2022
In the MATTER OF CHRISTIAN VV., Alleged to be a Juvenile Delinquent. Warren County Attorney, Respondent; v. Christian VV., Appellant.
Sandra M. Colatosti, Albany, for appellant. Lawrence Elmen, County Attorney, Lake George (Ryan J. Dickey of counsel), for respondent.
Sandra M. Colatosti, Albany, for appellant.
Lawrence Elmen, County Attorney, Lake George (Ryan J. Dickey of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Ceresia and Fisher, JJ.
MEMORANDUM AND ORDER
Clark, J. Appeal from an order of the Family Court of Warren County (Ted M. Wilson, J.), entered May 6, 2021, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.
In March 2021, petitioner commenced three juvenile delinquency proceedings against respondent (born in 2008). Through the first petition, petitioner alleged that respondent had committed acts that, if committed by an adult, would constitute the crimes of criminal mischief in the fourth degree (see Penal Law § 145.00 ) and menacing in the third degree (see Penal Law § 120.15 ); through the second, petitioner alleged that respondent committed acts that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree (see Penal Law § 145.00 ); and through the third, petitioner alleged that respondent committed acts that, if committed by an adult, would constitute the crimes of criminal mischief in the fourth degree (see Penal Law § 145.00 ) and petit larceny (see Penal Law § 155.25 ). In satisfaction of all three petitions, respondent admitted to the charge of criminal mischief in the fourth degree, as alleged in the first petition, and consented to be placed in a nonsecure facility for one year. Respondent appeals.
Initially, respondent's argument that the plea allocution did not comply with Family Ct Act § 321.3 is not moot — despite the expiration of respondent's placement — because the delinquency determination challenged herein "implicates possible collateral legal consequences" ( Matter of Ryan LL., 119 A.D.3d 994, 994, 990 N.Y.S.2d 114 [3d Dept. 2014] [internal quotation marks and citation omitted], lv denied 25 N.Y.3d 904, 2015 WL 1526141 [2015] ; accord Matter of Kameron VV., 156 A.D.3d 1272, 1273, 68 N.Y.S.3d 210 [3d Dept. 2017] ). Further, preservation of such a claim is not required (see Matter of Elijah X., 176 A.D.3d 1356, 1357, 110 N.Y.S.3d 756 [3d Dept. 2019] ; Matter of Kameron VV., 156 A.D.3d at 1273, 68 N.Y.S.3d 210 ; Matter of Daquan BB., 83 A.D.3d 1281, 1282, 920 N.Y.S.2d 835 [3d Dept. 2011] ).
Turning to the merits of respondent's arguments, Family Court must "ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders" ( Family Ct Act § 321.3[1] ). Although respondent's mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings. The record reflects that the court failed to question respondent's mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court's allocution fell short of the statutory mandate (see Family Ct Act § 321.3[1] ; Matter of Elijah X., 176 A.D.3d at 1357–1358, 110 N.Y.S.3d 756 ; Matter of Cheryl P., 175 A.D.3d 1298, 1300–1301, 109 N.Y.S.3d 310 [2d Dept. 2019] ; Matter of Kameron VV., 156 A.D.3d at 1274, 68 N.Y.S.3d 210 ).
The transcript indicates "[n]o audible response."
In light of such finding, respondent's remaining arguments are rendered academic.
Egan Jr., J.P., Ceresia and Fisher, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and petition dismissed.