Matter of Anthony M.

Matter of Anthony M. 2008 NY Slip Op 00160 [47 AD3d 434] January 10, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

In the Matter of Anthony M., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1] Tamara A. Steckler, The Legal Aid Society, New York City, (Marcia Egger and Lisa B. Freedman of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Karen M. Griffin of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about May 14, 2007, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime of attempted petit larceny, and imposed a conditional discharge for a period of nine months, unanimously reversed, on the facts and as a matter of discretion, without costs or disbursements, the juvenile delinquency adjudication and conditional discharge vacated and the matter remanded with the direction to order an adjournment in contemplation of dismissal (ACD) pursuant to Family Court Act § 315.3 (1).

Family Court improvidently exercised its discretion in finding appellant to be a juvenile delinquent and not adjourning the proceeding in contemplation of dismissal (see Matter of Justin Charles H., 9 AD3d 316, 317 [2004]). The record reflects that appellant came from a stable home environment and had no prior history of criminality, that this incident was his first contact with the juvenile justice system, and that he had no record of getting into trouble at home, at school, or in the community. There were no further incidents during the six months between this incident and the dispositional hearing and no indication that appellant ever used drugs or alcohol or was affiliated with a gang. Appellant accepted full responsibility for his theft of school property and stated that he would never do anything like this again. While the record does reflect that appellant was absent or late from school on several occasions, the court could have, and should have, under the terms and conditions of an ACD, required the probation department to monitor appellant "to assure that he attends school regularly and obeys a curfew" (id. at 317). An ACD would have avoided the stigma of a juvenile delinquency adjudication (see id.; Matter of Letisha D., 14 AD3d 455, 456-457 [2005]), while at the same time focusing on appellant's need for direction and supervision. Since an ACD may only be entered prior to the entry of a finding [*2]of juvenile delinquency and order of disposition (Family Ct Act § 315.3 [1]; § 352.1 [1]), we vacate the same. Concur—Friedman, J.P., Marlow, Nardelli and Catterson, JJ.