Matter of Aaron B.

Matter of Aaron B. 2010 NY Slip Op 04925 [74 AD3d 534] June 10, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

In the Matter of Aaron B., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1] Howard M. Simms, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about February 7, 2007, which adjudicated appellant a juvenile delinquent upon his admission in Westchester County Family Court (Colleen Duffy, J.) (transferred to Bronx County), that he committed an act that, if committed by an adult, would constitute the crime of grand larceny in the fourth degree, and placed him in the custody of the Office of Children and Family Services for a period of 18 months, unanimously reversed, on the law, without costs, and the matter remanded to Family Court, Bronx County for a new fact-finding hearing.

Appellant is entitled to vacatur of his admission because the court failed to comply with the allocution requirements of Family Court Act § 321.3 (1). The allocution was inadequate because the court did not advise appellant that he had the rights to testify, call witnesses in his own behalf, and confront witnesses against him, or of the presentment agency's obligation to prove his guilt beyond a reasonable doubt (see Matter of David T., 59 AD3d 631 [2009]). Since this requirement is nonwaivable (see Family Ct Act § 321.3 [1]), preservation is not required (see Matter of Tyler D., 64 AD3d 1243 [2009]). Concur—Tom, J.P., Andrias, Catterson, Moskowitz and Acosta, JJ.