In re Demitris O.

Appellate Division of the Supreme Court of New York

In re Demitris O.

191 A.D.2d 909, 595 N.Y.S.2d 338

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

DecidedMarch 18, 1993

StatusPublished

Cited by2 cases

This text of 191 A.D.2d 909 (In re Demitris O.) 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 Demitris O., 191 A.D.2d 909, 595 N.Y.S.2d 338 (N.Y. Ct. App. 1993).

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Opinion

—Appeal from an order of the Family Court of Albany County (Tobin, J.), entered April 3, 1992, which granted petitioner’s application, in a proceed[910]*910ing pursuant to Family Court Act article 3, and placed respondent with the Division for Youth.

Family Court’s order of disposition following respondent’s adjudication as a juvenile delinquent placed respondent for a period of one year with the Division for Youth. Family Court Act § 353.3 (3) provides that, when placing a juvenile with the Division, "the court shall * * * authorize the [Division to do one of the following:” (a) placement in a secure facility, (b) placement in a school or center pursuant to Executive Law §§ 510 and 511, or (c) placement in a youth center pursuant to Executive Law § 502 (emphasis supplied). Contrary to the statute’s mandate, however, Family Court did not make a specific choice but, instead, authorized the Division to place respondent pursuant to any of the three alternatives. In addition, although Family Court specifically noted, prior to listing the three alternatives, that respondent should be placed in a "title III” facility (Executive Law art 19-G, tit 3), only the first two alternatives listed refer to title III placement while the third alternative (placement in a youth center pursuant to Executive Law § 502) refers to placement in a "title II” facility (Executive Law art 19-G, tit 2) (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 353.3, at 532). Because of this failure to specify in which type of facility respondent would be placed (see, Matter of Kyle S., 64 AD2d 666, 667), as well as the inconsistency in the court’s order of disposition, we withhold decision and remit the matter to Family Court for a clarification of its order.

As a final matter, we note that, as part of an agreement which adjourned in contemplation of dismissal a third juvenile delinquency petition then pending against him, respondent specifically agreed to the condition in the order of disposition that he would not be released early unless by permission of the court. As such, he has waived any argument with respect thereto.

Weiss, P. J., Mikoll, Mercure, Mahoney and Casey, JJ., concur. Ordered that the decision is withheld, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court’s decision.

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—Appeal from an order of the Family Court of Albany County (Tobin, J.), entered April 3, 1992, which granted petitioner’s application, in a proceed[910]*910ing pursuant to Family Court Act article 3, and placed respondent with the Division for Youth.

Family Court’s order of disposition following respondent’s adjudication as a juvenile delinquent placed respondent for a period of one year with the Division for Youth. Family Court Act § 353.3 (3) provides that, when placing a juvenile with the Division, "the court shall * * * authorize the [Division to do one of the following:” (a) placement in a secure facility, (b) placement in a school or center pursuant to Executive Law §§ 510 and 511, or (c) placement in a youth center pursuant to Executive Law § 502 (emphasis supplied). Contrary to the statute’s mandate, however, Family Court did not make a specific choice but, instead, authorized the Division to place respondent pursuant to any of the three alternatives. In addition, although Family Court specifically noted, prior to listing the three alternatives, that respondent should be placed in a "title III” facility (Executive Law art 19-G, tit 3), only the first two alternatives listed refer to title III placement while the third alternative (placement in a youth center pursuant to Executive Law § 502) refers to placement in a "title II” facility (Executive Law art 19-G, tit 2) (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 353.3, at 532). Because of this failure to specify in which type of facility respondent would be placed (see, Matter of Kyle S., 64 AD2d 666, 667), as well as the inconsistency in the court’s order of disposition, we withhold decision and remit the matter to Family Court for a clarification of its order.

As a final matter, we note that, as part of an agreement which adjourned in contemplation of dismissal a third juvenile delinquency petition then pending against him, respondent specifically agreed to the condition in the order of disposition that he would not be released early unless by permission of the court. As such, he has waived any argument with respect thereto.

Weiss, P. J., Mikoll, Mercure, Mahoney and Casey, JJ., concur. Ordered that the decision is withheld, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court’s decision.

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191 A.D.2d 909, 595 N.Y.S.2d 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-demitris-o-nyappdiv-1993.

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