In re Allen R.

Appellate Division of the Supreme Court of New York

In re Allen R.

214 A.D.2d 800, 625 N.Y.S.2d 310, 1995 N.Y. App. Div. LEXIS 3723

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 6, 1995

StatusPublished

Cited by7 cases

This text of 214 A.D.2d 800 (In re Allen R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Allen R., 214 A.D.2d 800, 625 N.Y.S.2d 310, 1995 N.Y. App. Div. LEXIS 3723 (N.Y. Ct. App. 1995).

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Opinion

White, J.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered May 31, 1994, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 3, to adjudicate respondent a juvenile delinquent.

Respondent’s appeal in this proceeding under Family Court Act article 3 focuses on the sufficiency of the plea allocution. The record shows that prior to accepting respondent’s admission that he committed acts, which if had been committed by an adult, would have constituted the crime of sexual abuse in the second degree, Family Court asked respondent if his Law Guardian had advised him of his rights. Respondent indicated that she had. Family Court then proceeded to elicit statements from respondent establishing that he committed the act to which he was entering the admission (see, Family Ct Act [801]*801§ 321.3 [1] [a]). Following a dispositional hearing, respondent was placed in the custody of the Sullivan County Department of Social Services for residential placement for up to one year.

We reverse as we agree with respondent that the plea allocution was insufficient. Although Family Court partially complied with Family Court Act § 321.3, and respondent acknowledged that his Law Guardian advised him of his rights, it was the court’s obligation to advise respondent of the right to a fact-finding hearing and to ascertain, through an allocution of respondent and his mother, who was present at the proceedings, that he was voluntarily waiving such right and was aware of the possible dispositional orders (see, Matter of Edgar Q., 185 AD2d 432; Matter of Brian 00., 158 AD2d 816; Matter of Paul H, 154 AD2d 943; see also, Family Ct Act § 321.3 [1] [b], [c]). Therefore, since Family Court did not fulfill this obligation, the dispositional order should be reversed and the matter remitted to Family Court for further proceedings (see, Matter of Herbert TT, 192 AD2d 916).

In view of this disposition, we do not address respondent’s remaining contentions.

Cardona, P. J., Mercure, Peters and Spain, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Sullivan County for further proceedings not inconsistent with this Court’s decision.

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White, J.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered May 31, 1994, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 3, to adjudicate respondent a juvenile delinquent.

Respondent’s appeal in this proceeding under Family Court Act article 3 focuses on the sufficiency of the plea allocution. The record shows that prior to accepting respondent’s admission that he committed acts, which if had been committed by an adult, would have constituted the crime of sexual abuse in the second degree, Family Court asked respondent if his Law Guardian had advised him of his rights. Respondent indicated that she had. Family Court then proceeded to elicit statements from respondent establishing that he committed the act to which he was entering the admission (see, Family Ct Act [801]*801§ 321.3 [1] [a]). Following a dispositional hearing, respondent was placed in the custody of the Sullivan County Department of Social Services for residential placement for up to one year.

We reverse as we agree with respondent that the plea allocution was insufficient. Although Family Court partially complied with Family Court Act § 321.3, and respondent acknowledged that his Law Guardian advised him of his rights, it was the court’s obligation to advise respondent of the right to a fact-finding hearing and to ascertain, through an allocution of respondent and his mother, who was present at the proceedings, that he was voluntarily waiving such right and was aware of the possible dispositional orders (see, Matter of Edgar Q., 185 AD2d 432; Matter of Brian 00., 158 AD2d 816; Matter of Paul H, 154 AD2d 943; see also, Family Ct Act § 321.3 [1] [b], [c]). Therefore, since Family Court did not fulfill this obligation, the dispositional order should be reversed and the matter remitted to Family Court for further proceedings (see, Matter of Herbert TT, 192 AD2d 916).

In view of this disposition, we do not address respondent’s remaining contentions.

Cardona, P. J., Mercure, Peters and Spain, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Sullivan County for further proceedings not inconsistent with this Court’s decision.

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Bluebook (online)

214 A.D.2d 800, 625 N.Y.S.2d 310, 1995 N.Y. App. Div. LEXIS 3723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-allen-r-nyappdiv-1995.

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