In re Delmar C.

Appellate Division of the Supreme Court of New York

In re Delmar C.

207 A.D.2d 998, 617 N.Y.S.2d 611

Appellate Division of the Supreme Court of the State of New York·Decided September 30, 1994·No. Appeal No. 1·Published·Cited by 9 cases

Opinion

—Order unanimously reversed on the law without costs, admission vacated and matter remitted to Oneida County Family Court for further proceedings on the petition. Memorandum: In this juvenile delinquency proceeding, respondent appeals from two dispositional orders finding him guilty of violating the conditions of two previously imposed sentences of probation, revoking probation and placing him with the New York State Division for Youth. Respondent contends, inter alia, that the court failed to satisfy the requirements of sections 321.3 and 360.3 of the Family Court Act in eliciting respondent’s admission to violating the terms of probation.

The court did not advise respondent of the contents of the petition (see, Family Ct Act § 360.3 [2] [a]). Additionally, the court failed to ascertain, by means of a proper allocution, whether respondent admitted committing the specific act or acts alleged in the petition (see, Matter of William C., 140 AD2d 1004, 1005; Matter of Tina P., 135 AD2d 1105, 1106; cf., Matter of Edgar Q., 185 AD2d 432, 433). Similarly, the court did not conduct an adequate inquiry in eliciting respondent’s waiver of a fact-finding hearing. The court informed respondent of his right to put the presenting agency to its proof, but did not tell respondent that he had a right to cross-examine the presenting agency’s witnesses and put in a defense (see, Matter of Walker, 144 AD2d 306; Matter of Kim F., 109 AD2d 706, 708-709). Further, the court failed to ascertain whether respondent was aware of the possible dispositional orders (see, Matter of William C., supra; Matter of Tina P., supra; Matter of Kim F., supra). We conclude that respondent’s waiver was not voluntary, knowing and intelligent. Thus, we reverse the orders and vacate respondent’s admission, thereby restoring respondent to pre-allocution status to enable the court to [999]*999comply with the statutory requirements. (Appeal from Order of Oneida County Family Court, Morgan, J.—Violation of Probation.) Present—Denman, P. J., Pine, Lawton, Wesley and Davis, JJ.

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—Order unanimously reversed on the law without costs, admission vacated and matter remitted to Oneida County Family Court for further proceedings on the petition. Memorandum: In this juvenile delinquency proceeding, respondent appeals from two dispositional orders finding him guilty of violating the conditions of two previously imposed sentences of probation, revoking probation and placing him with the New York State Division for Youth. Respondent contends, inter alia, that the court failed to satisfy the requirements of sections 321.3 and 360.3 of the Family Court Act in eliciting respondent’s admission to violating the terms of probation.

The court did not advise respondent of the contents of the petition (see, Family Ct Act § 360.3 [2] [a]). Additionally, the court failed to ascertain, by means of a proper allocution, whether respondent admitted committing the specific act or acts alleged in the petition (see, Matter of William C., 140 AD2d 1004, 1005; Matter of Tina P., 135 AD2d 1105, 1106; cf., Matter of Edgar Q., 185 AD2d 432, 433). Similarly, the court did not conduct an adequate inquiry in eliciting respondent’s waiver of a fact-finding hearing. The court informed respondent of his right to put the presenting agency to its proof, but did not tell respondent that he had a right to cross-examine the presenting agency’s witnesses and put in a defense (see, Matter of Walker, 144 AD2d 306; Matter of Kim F., 109 AD2d 706, 708-709). Further, the court failed to ascertain whether respondent was aware of the possible dispositional orders (see, Matter of William C., supra; Matter of Tina P., supra; Matter of Kim F., supra). We conclude that respondent’s waiver was not voluntary, knowing and intelligent. Thus, we reverse the orders and vacate respondent’s admission, thereby restoring respondent to pre-allocution status to enable the court to [999]*999comply with the statutory requirements. (Appeal from Order of Oneida County Family Court, Morgan, J.—Violation of Probation.) Present—Denman, P. J., Pine, Lawton, Wesley and Davis, JJ.

In re Delmar C., 207 A.D.2d 998, 617 N.Y.S.2d 611 (N.Y. Ct. App. 1994).

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