In re Patrick R.

216 A.D.2d 964, 628 N.Y.S.2d 924, 1995 N.Y. App. Div. LEXIS 7395

Opinion

Order unanimously reversed on the law without costs and matter remitted to Livingston County Family Court for further proceedings in accordance with the following Memorandum: Contrary to the contention of respondent, the record establishes that he consented to the disposition of both the PINS and juvenile delinquency petitions by a single adjournment in contemplation of dismissal (ACD). The Probation Department, which may be a petitioner pursuant to Family Court Act § 733, properly brought an application to restore the PINS petition to the calendar. That application was timely under Family Court Act § 749 (a) because it was brought during the duration of the ACD. By consenting to the court’s restoration of the proceeding to the calendar after the ACD had expired, respondent waived his argument that the restoration was untimely.

The order must be reversed, however, and the matter remitted to Livingston County Family Court, because respondent was never advised of his right to remain silent, as required by Family Court Act § 741 (a) (see, Matter of Kent H. [appeal No. 1], 162 AD2d 1058; Matter of Paul H., 156 AD2d 1030; Matter of Patricia Ann R., 154 AD2d 933). (Appeal from Order of Livingston County Family Court, Smith, J.—Person In Need of Supervision.) Present—Lawton, J. P., Fallon, Wesley, Callahan and Doerr, JJ.