Kwane M., Matter of
| Decision Date | 23 June 1986 |
| Citation | 121 A.D.2d 635,503 N.Y.S.2d 871 |
| Parties | In the Matter of KWANE M. (Anonymous), Respondent. |
| Court | New York Supreme Court — Appellate Division |
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Fay Leoussis and Karen Hutson of counsel), for appellant.
Lenore Gittis, New York City (Mary A. Clark of counsel), for respondent.
Before WEINSTEIN, J.P., and NIEHOFF, KUNZEMAN and SPATT, JJ.
MEMORANDUM BY THE COURT.
In a juvenile delinquency proceeding pursuant to the Family Court Act article 3, the appeal is from an order of the Family Court, Kings County (DePhillips, J.), dated December 7, 1984, which granted the respondent's motion to dismiss the petition in furtherance of justice pursuant to Family Court Act § 315.2 on the ground that the respondent was currently in placement with the New York State Division for Youth (DFY).
Order reversed, without costs or disbursements, and matter remitted to the Family Court, Kings County, for a fact-finding hearing on the petition pursuant to Family Court Act article 3, part 4.
After admitting to an act which, if committed by an adult would have constituted the crime of assault in the third degree, the respondent was placed in a DFY Title III facility for 12 months. On that same day, the respondent was charged in a second petition, inter alia, with acts which would constitute assault in the third degree, stemming from an incident in which the respondent hit the victim in her mouth with his fist, resulting in an injury which required stitches. The respondent moved to have the second petition dismissed in furtherance of justice pursuant to Family Court Act § 315.2 on the ground that he was already placed and, therefore, was no longer a threat to the community and was receiving the necessary supervision. The Family Court granted the motion to dismiss, based upon the respondent's argument.
We reverse. A delinquency petition may be dismissed in furtherance of justice pursuant to Family Court Act § 315.2(1) upon the court's consideration of the numerous factors contained therein. At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal (People v. Rickert, 58 N.Y.2d 122, 128, 459 N.Y.S.2d 734, 446 N.E.2d 419). Although the community may be adequately protected from a juvenile at the point in time that the petition is dismissed, this, by itself, is not sufficiently compelling to support a rule requiring the per se dismissal of a second...
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In re Steven C.
...“[a]t least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal” ( Matter of Kwane M., 121 A.D.2d 635, 636, 503 N.Y.S.2d 871; see Matter of Chris H., 197 A.D.2d 689, 689–690, 602 N.Y.S.2d 939; Matter of Reginald v. H., 139 A.D.2d 580, 581, ......
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Terrence T., Matter of
... ... 11 Note Matter of Gregory C. (supra) pre-dates the Court of appeals decision in Matter of Frank C., (supra), the dicta of which impels many Family Court judges to conclude that there is a per se rule of dismissal for violation of § 350.1 ... 12 In Matter of Kwane M., 121 A.D.2d 635, 503 N.Y.S.2d 871 (2nd Dept., 1986) and (Matter of Carlief V., 121 A.D.2d 640, 503 N.Y.S.2d 872 (2nd Dept., 1986), it was held that dismissal of a delinquency petition in furtherance of justice because the respondent was already placed on a prior delinquency petition and ... ...
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Chris H., Matter of
... ... However, the statute goes on to provide that in making any such determination, the court must consider certain factors listed in the statute (Family Ct. Act § 315.2[1]; see also, Matter of Kwane M., 121 A.D.2d 635, 503 N.Y.S.2d 871; Matter of Carlief V., 121 A.D.2d 640, 503 N.Y.S.2d 872). Moreover, Family Court Act § 315.2(2) mandates that, when dismissing a petition in the furtherance of justice, the Family Court "must set forth its reasons therefor upon the record". In the instant ... ...
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Tristan C., Matter of
... ... The court already has an extensive diagnostic assessment; Tristan's needs have been identified; and he is now receiving the intensive residential treatment he requires. Compare Matter of Kwane M., 121 A.D.2d 635, 503 N.Y.S.2d 871 (2nd Dept.1986). Accordingly, the court finds that Tristan's best interests would not be promoted by a continuation of this proceeding ... Finally, it cannot be argued that Tristan is--or ever was--a danger to the community. Nothing in the ... ...