In the Matter of Daquan Bb.

• Decision Date: 14 April 2011
• Parties: In the Matter of DAQUAN BB., Alleged to be a Juvenile Delinquent.Rensselaer County Attorney, Respondent;Daquan BB., Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1281

920 N.Y.S.2d 835

2011 N.Y. Slip Op. 03003

In the Matter of DAQUAN BB., Alleged to be a Juvenile Delinquent.Rensselaer County Attorney, Respondent;Daquan BB., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 14, 2011.

Eugene P. Grimmick, Troy, for appellant.Stephen A. Pechenik, County Attorney, Troy (Kelly A. Cramer of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.ROSE, J.

Appeal from an order of the Family Court of Rensselaer County (E. Walsh, J.), entered July 29, 2010, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 3, to adjudicate respondent a juvenile delinquent.

In May 2004, respondent appeared in Albany County Family Court (Maney, J.) (hereinafter Family Court) and admitted committing an act which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the seventh degree. Family Court thereafter transferred the matter to Rensselaer County, where respondent then was residing, for disposition. At the conclusion of the hearing that followed, Rensselaer County Family Court (E. Walsh, J.) adjudicated respondent to be a juvenile delinquent and placed him under the supervision of the local Probation Department for a period of one year. Respondent now appeals, contending that Family Court failed to comply with the mandatory and non-waivable requirements of Family Ct. Act § 321.3 prior to accepting his admission.

Preliminarily, we reject petitioner's contention that respondent was required to preserve this claim for our review ( see Matter of Dakota L.K., 70 A.D.3d 1334, 1335, 895 N.Y.S.2d 625 [2010]; Matter of Tyler D., 64 A.D.3d 1243, 1244, 881 N.Y.S.2d 787 [2009]; Matter of Sean R.P., 24 A.D.3d 1200, 1201, 807 N.Y.S.2d 499 [2005], lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1172 [2006] ). Turning to the merits, Family Ct. Act § 321.3(1) provides that Family Court “shall not consent to the entry of an admission” unless it advises the respondent of his or her right to a fact-finding hearing and, further, ascertains through allocution of the respondent and his or her parent that the respondent committed the act(s) underlying the admission, is voluntarily waiving a fact-finding hearing and is aware of the possible specific dispositional orders ( see Matter of William VV., 42 A.D.3d 710, 711, 839 N.Y.S.2d 614 [2007] ). Additionally, “[u]pon consenting to the entry of an admission pursuant to this section, the court must state the reasons for granting such consent” (Family Ct. Act § 321.3[2] ).

Based upon our review of the record as a whole, we agree that the statutory requirements were not met here. Specifically, although Family Court did inform respondent of his right to a hearing, the court did not advise respondent that “he had the right to remain silent ..., the right to present witnesses on his own behalf and to confront witnesses against him at a fact-finding hearing, and the right to require the presentment agency to prove that he committed an act which, if committed by an adult, would constitute a crime beyond a reasonable doubt” ( Matter of David T., 59 A.D.3d 631, 632, 873 N.Y.S.2d 706 [2009] [citations omitted] ). Further, even assuming that the court's statement that respondent could be placed on probation or in a residential facility sufficed to advise respondent of the possible specific dispositional alternatives ( compare Matter of Eric CC., 298 A.D.2d 632, 633 n. 2, 748 N.Y.S.2d 186 [2002] ), the allocution of respondent and his mothe...