Matter of Besjon B.

Matter of Besjon B. 2012 NY Slip Op 06839 Decided on October 11, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 11, 2012
Andrias, J.P., Sweeny, Catterson, Moskowitz, Manzanet-Daniels, JJ.
8168

[*1]In re Besjon B., A Person Alleged to be a Juvenile Delinquent, Appellant.

Presentment Agency


Tamara A. Steckler, The Legal Aid Society, New York (Selene
D'Alessio of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Dona B.
Morris of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about January 20, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of assault in the third degree and menacing in the third degree, and placed him on probation for a period of nine months, unanimously reversed, as an exercise of discretion in the interest of justice, without costs, the delinquency finding and dispositional order vacated, and the matter remanded to Family Court with the direction to order an adjournment in contemplation of dismissal pursuant to Family Court Act § 315.3(1), nunc pro tunc to January 20, 2012.

The court improvidently exercised its discretion when it adjudicated appellant a juvenile delinquent and imposed probation. This was not "the least restrictive available alternative" (Family Ct Act § 352.2[2][a]). An adjournment in contemplation of dismissal would have sufficed to serve the needs of appellant and society (see e.g. Matter of Tyvan B., 84 AD3d 462 [2011]).

Appellant was 11 years old at the time of the incident, which was his only conflict with the law. The circumstances of the assault were not particularly egregious. Although appellant's school record had been unsatisfactory, it had greatly improved by the time of the disposition. An ACD with appropriate conditions would have provided adequate supervision, and the nine-month [*2]term of probation that the court imposed was unnecessary.

In light of this determination, we find it unnecessary to discuss any of the other issues raised by appellant.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2012

CLERK