In re Edward V.

204 A.D.2d 1060, 614 N.Y.S.2d 348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1994
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The record supports Family Court’s finding that respondent committed an act that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree (Penal Law § 145.00 [1]). The court, as the trier of fact, was entitled to resolve questions of credibility against respondent (see, Matter of Michael D., 109 AD2d 633, affd 66 NY2d 843).

Family Court properly exercised its discretion in directing respondent’s placement with the New York State Division for Youth. That placement was "the least restrictive available alternative * * * consistent with the needs and best interests of the respondent as well as the need for protection of the community” (Family Ct Act § 352.2 [2] [a]).

The fact-finding order incorrectly recites that respondent admitted his guilt of criminal mischief in the fourth degree. It is clear from the decision, however, that the court found that respondent denied any wrongdoing. Where there is a conflict between an order and a decision, the decision controls (Di Prospero v Ford Motor Co., 105 AD2d 479, 480; Rowlee v Dietrich, 88 AD2d 751, 752). The error may be corrected by a motion to resettle (see, CPLR 2221) or may be cured on appeal (Rowlee v Dietrich, supra, at 752). Thus, we modify the fact-finding order by deleting the fourth paragraph.

There is also a discrepancy between the court’s decision following the dispositional hearing and the order of disposition. In its decision, Family Court determined that the dispositional order should include a provision that, during the 12-month placement, respondent’s need for medication should be assessed (see, Family Ct Act § 233). The dispositional order, however, contains no such provision. We modify the order of disposition, therefore, to direct the Division for Youth to provide for an assessment of respondent’s need for medication. (Appeal from Order of Monroe County Family Court, Kohout, J.—Juvenile Delinquency.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.