In re Theresa W.

142 Misc. 2d 201, 536 N.Y.S.2d 668, 1988 N.Y. Misc. LEXIS 801

• Court: New York City Family Court
• Decided: December 27, 1988
• Status: Published

Opinion

OPINION OF THE COURT

Anthony F. Bonadio, J.

On August 31, 1988, this delinquency case was adjourned in contemplation of dismissal (ACD) (Family Ct Act § 315.3). Before the court for signature is a proposed ACD order which contains a provision ordering the destruction of fingerprints, palmprints and photographs (see, Family Ct Act §§ 306.1, 315.3, 354.1, 375.1).

We need not decide whether the respondent seeks expungement of this court’s records under section 375.3, the sealing/ return of agency or court records under section 375.1, and/or the destruction of fingerprints, etc., under section 354.1, since any such application is, in our opinion, premature. While sealing is mandatory under section 375.1 when a delinquency action has been terminated in favor of a respondent (unless the presentment agency moves to prevent sealing), the mere granting of an ACD is not a termination of the proceeding in respondent’s favor. Family Court Act § 375.1 (2) provides that a delinquency case is terminated

"in favor of a respondent where * * *

"(c) the petition has been deemed * * * dismissed under section 315.3” (emphasis added).

Family Court Act § 315.3 (1) provides in part that a case adjourned in contemplation of dismissal is "deemed to have been dismissed by the court in furtherance of justice” at the expiration of the ACD order. Sealing under section 375.1 would be mandated at that time, subject to the presentment agency’s right to move against sealing.

Accordingly, the relief demanded in the last paragraph of the proposed order is denied, and that provision stricken from the order (see, Official Family Ct Form 3-9, reprinted in 22 NYCRR, subtit D, ch IV). In addition, the proposed order has been corrected to provide that this six-month ACD expire on February 28, not May 31, 1989 (see, Family Ct Act § 315.3 [1]).