Matter of Kayla F.

Matter of Kayla F. 2014 NY Slip Op 08172 Decided on November 21, 2014 Appellate Division, Fourth 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 November 21, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
1169 CAF 14-00547

[*1]IN THE MATTER OF KAYLA F., RESPONDENT-APPELLANT. - MONROE COUNTY PRESENTMENT AGENCY, PETITIONER-RESPONDENT.

Appeal from an amended order of the Family Court, Monroe County (John B. Gallagher, Jr., J.), entered December 11, 2013 in a proceeding pursuant to Family Court Act article 3. The amended order adjudicated respondent to be a juvenile delinquent and placed her in the custody of the Commissioner of Health and Human Services of Monroe County for a period of 12 months.

BRIAN STRAIT, ATTORNEY FOR THE CHILD, ROCHESTER, FOR RESPONDENT-APPELLANT.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (BRETT GRANVILLE OF COUNSEL), FOR PETITIONER-RESPONDENT.

It is hereby ORDERED that the amended order so appealed from is unanimously modified on the facts and the law by substituting for respondent's adjudication as a juvenile delinquent a finding that she is a person in need of supervision and as modified the amended order is affirmed without costs.

Memorandum: Respondent appeals from an amended order adjudicating her a juvenile delinquent based upon the finding that she committed an act that, if committed by an adult, would constitute the crime of assault in the third degree (Penal Law § 120.00 [2]). Respondent contends that Family Court abused its discretion in denying her motion pursuant to Family Court Act § 311.4 (2) to substitute a finding that she is a person in need of supervision (PINS) for a finding that she is a juvenile delinquent, inasmuch as she demonstrated no danger to the community at large and could have received the same placement under a PINS disposition. We agree (see Matter of Devon R., 278 AD2d 15, 15, lv denied 96 NY2d 707). A PINS is "[a] person less than eighteen years of age who[, inter alia,] . . . is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child's care" (Family Court Act § 712 [a]; see Matter of Gabriela A., 103 AD3d 888, 889, affd 23 NY3d 155). Under the circumstances of this case, we conclude that respondent's conduct was consistent with PINS behavior, not with juvenile delinquency (see Matter of Jeffrey C., 47 AD3d 433, 434, lv denied 10 NY3d 707; see also Matter of Daniel I., 57 AD3d 666, 668). We therefore modify the amended order by substituting a finding that respondent is a person in need of supervision for the adjudication that she is a juvenile delinquent. We have reviewed respondent's remaining contentions and conclude that they are without merit.

Entered: November 21, 2014

Frances E. Cafarell

Clerk of the Court