In the Matter of Sheenah C.

• Court: New York Family Court
• Writing for the Court: JOHN M. HUNT, J.
• Citation: 896 N.Y.S.2d 670,2010 N.Y. Slip Op. 20086,27 Misc.3d 784
• Parties: In the Matter of SHEENAH C., A Person Alleged to be a Juvenile Delinquent, Respondent.
• Decision Date: 09 March 2010

27 Misc.3d 784
896 N.Y.S.2d 670
2010 N.Y. Slip Op. 20086

In the Matter of SHEENAH C., A Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, Queens County, New York.

March 9, 2010.

[896 N.Y.S.2d 671]

Michael A. Cardozo, Corporation Counsel (Ralph M.C., Sabatino of counsel), New York City, for Presentment Agency.Nestor Soto, Astoria, attorney for respondent.JOHN M. HUNT, J.

[27 Misc.3d 785] The Presentment Agency has filed an application to restore this juvenile delinquency proceeding to the Court's calendar based upon an allegation that respondent has violated one or more of the terms and conditions of the order which adjourned the case in contemplation of dismissal (“ACD”).

On November 25, 2009 the Presentment Agency filed a petition against the respondent, who was born on November 1, 1993, alleging that she committed an act which, were she an adult, would constitute the crime of Criminal Possession of Marihuana in the Fifth Degree. Respondent's initial appearance upon the petition was conducted on November 25, 2009 (Fam. Ct. Act §§ 320.1; 320.4). At the conclusion of the initial appearance and pursuant to Family Court Act § 315.3, the Court adjourned the proceeding in contemplation of dismissal for a six month period ending on March 25, 2010 upon specific terms and conditions set forth in its order.¹

[896 N.Y.S.2d 672]

On January 5, 2010, the Presentment Agency filed an ex parte application pursuant to Family Court Act § 315.3(1) to restore the proceeding to the Court's calendar based upon its claim that the respondent has violated one or more of the terms and conditions of the ACD. On that date, the Court issued a warrant to [27 Misc.3d 786] secure respondent's appearance before the Court (Fam. Ct. Act §§ 153; 312.2) and a warrant review was conducted by the Court on January 15, 2010. As of the date of this order, respondent has not appeared nor has she been produced upon the warrant and her present whereabouts appear to be unknown.

The relevant statute, Family Court Act § 315.3(1), reads as follows:

Except where the petition alleges that the respondent has committed a designated felony act, the court may at any time prior to the entering of a finding under section 352.1 and with the consent of the respondent order that the proceeding be “adjourned in contemplation of dismissal”. An adjournment in contemplation of dismissal is an adjournment of the proceeding for a period not to exceed six months, with a view to ultimate dismissal of the petition in furtherance of justice. Upon issuing such an order, providing such terms and conditions as the court deems appropriate, the court must release the respondent. * * * Upon ex parte motion by the presentment agency, or upon the court's own motion, made at the time the order is issued or at any time during its duration, the court may restore the matter to the calendar. If the proceeding is not restored, the petition is, at the expiration of the order, deemed to have been dismissed in furtherance of justice.²

It has been observed that “[a]lthough an ACD resembles the dispositions of conditional discharge and probation, because a juvenile's continued freedom is contingent on the satisfaction of certain conditions, an ACD is not a disposition of a juvenile delinquency proceeding. Unlike dispositional orders, which may only be issued after the conclusion of dispositional hearing ... an ACD may only be granted to a person who has not been adjudicated a juvenile delinquent” ( Matter of Edwin L., 88 N.Y.2d 593, 601, 648 N.Y.S.2d 850, 671 N.E.2d 1247). In contrast to Criminal Procedure Law § 170.55(1), which [27 Misc.3d 787] provides that a local criminal court may grant an ACD prior to the entry of a plea or a verdict, in a juvenile delinquency proceeding an ACD may be granted at any time, including at the conclusion of a dispositional hearing, so long as the Court has not adjudicated the respondent to be a juvenile delinquent pursuant to Family Court Act § 352.1(1) ( see, Matter of Edwin L. at 601–602, 648 N.Y.S.2d 850, 671 N.E.2d 1247; Matter of Janay P., 11 A.D.3d 697, 783 N.Y.S.2d 293 [2004]; Matter of Melissa VV., 26 A.D.3d 682, 683, 809 N.Y.S.2d 307 [2006] ).³

[896 N.Y.S.2d 673]

Where there is cause to believe that a juvenile has violated one or more of the terms and conditions of the ACD, the statute provides for a motion to restore the proceeding to the Court's calendar. That motion may be made by the Presentment Agency or by the Court upon its own initiative (Fam. Ct. Act § 315.3[1] ). The motion to restore the proceeding is actually a two-step procedure: the application must be made by the Court or filed by the Presentment Agency during the period of adjournment, and the Court must rule on the application prior to the expiration of the ACD period. A motion made or filed during the ACD period but left undecided until after the expiration of the ACD period is untimely, thus prohibiting the Court from taking any further action with respect to the case as its jurisdiction will have lapsed ( Matter of Kenyetta D., 188 A.D.2d 830, 831, 591 N.Y.S.2d 262 [1992]; Matter of Cleveland R., 14 A.D.3d 568, 789 N.Y.S.2d 201 [2005]; Matter of Traneil B.,...