In re Mark V.

Appellate Division of the Supreme Court of New York

In re Mark V.

34 A.D.2d 1101, 312 N.Y.S.2d 983, 1970 N.Y. App. Div. LEXIS 4279

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

DecidedJune 30, 1970

StatusPublished

This text of 34 A.D.2d 1101 (In re Mark V.) 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 Mark V., 34 A.D.2d 1101, 312 N.Y.S.2d 983, 1970 N.Y. App. Div. LEXIS 4279 (N.Y. Ct. App. 1970).

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Opinion

Order unanimously reversed on the law and facts and petition dismissed. Memorandum: After the close of the evidence at the adjudicatory hearing the court on its own motion substituted for the juvenile delinquency petition charging a simple assault, a “ Person in Need of Supervision ” petition without amending the allegations of the original petition. Neither the allegations in the juvenile delinquency petition nor the proof adduced upon the hearing are sufficient to show appellant is “ Person in Need of Supervision ”. Subdivision (b) of section 712 of the Family Court Act provides: “ ‘ Person in need of supervision ’ means a male less than sixteen years of age and a female less than eighteen years of age who is an habitual truant or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority”. Such facts as are found in the record to support the one isolated instance of misconduct charged in the petition do not establish any series of acts or pattern of conduct as required by the statute for an adjudication that appellant is a person in need of supervision. (Matter of David W., 34 A D 2d 1100; Matter of Bordone v. Allen F., 33 A D 2d 890; Matter of Richard W., 29 A D 2d 873.) Moreover, the evidence would not be sufficient to support the finding of an adjudication of delinquency as charged in the original petition. (Appeal from order of Erie County Family Court placing respondent on probation.) Present—Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

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Order unanimously reversed on the law and facts and petition dismissed. Memorandum: After the close of the evidence at the adjudicatory hearing the court on its own motion substituted for the juvenile delinquency petition charging a simple assault, a “ Person in Need of Supervision ” petition without amending the allegations of the original petition. Neither the allegations in the juvenile delinquency petition nor the proof adduced upon the hearing are sufficient to show appellant is “ Person in Need of Supervision ”. Subdivision (b) of section 712 of the Family Court Act provides: “ ‘ Person in need of supervision ’ means a male less than sixteen years of age and a female less than eighteen years of age who is an habitual truant or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority”. Such facts as are found in the record to support the one isolated instance of misconduct charged in the petition do not establish any series of acts or pattern of conduct as required by the statute for an adjudication that appellant is a person in need of supervision. (Matter of David W., 34 A D 2d 1100; Matter of Bordone v. Allen F., 33 A D 2d 890; Matter of Richard W., 29 A D 2d 873.) Moreover, the evidence would not be sufficient to support the finding of an adjudication of delinquency as charged in the original petition. (Appeal from order of Erie County Family Court placing respondent on probation.) Present—Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.

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Bluebook (online)

34 A.D.2d 1101, 312 N.Y.S.2d 983, 1970 N.Y. App. Div. LEXIS 4279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mark-v-nyappdiv-1970.