Matter of Leighton F.

Matter of Leighton F. 2013 NY Slip Op 05315 Decided on July 17, 2013 Appellate Division, Second 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 July 17, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2012-06846
2013-06447
(Docket Nos. D-7555-10/11B, D-7684-10/11B)

[*1]In the Matter of Leighton F. (Anonymous), appellant. Robert Marinelli, New York, N.Y., for appellant.




Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry
A. Sonnenshein and Diana Lawless of counsel), for respondent.


DECISION & ORDER

In two juvenile delinquency proceedings pursuant to Family Court Act article 3, Leighton F. appeals from (1) an order of the Family Court, Queens County (Lubow, J.), dated April 20, 2012, which, upon a decision of the same court dated March 27, 2012, made after a hearing, in effect, found that he violated the terms and conditions of probation previously imposed by the same court in a prior order of disposition dated November 22, 2011, placing him on probation, and (2) an order of the same court dated June 5, 2012, which vacated the order of disposition dated November 22, 2011, and thereupon placed him in the custody of the New York State Office of Children and Family Services.

ORDERED that on the Court's own motion, the notice of appeal from the decision dated March 27, 2012, is deemed to be a notice of appeal from the order dated April 20, 2012 (see CPLR 5512[a]); and it is further,

ORDERED that the orders are affirmed, without costs or disbursements

After a hearing, the Family Court properly determined that the Presentment Agency established, by a fair preponderance of the evidence (see Family Ct Act § 350.3; Matter of Tristan W., 258 AD2d 585; Matter of Julies R., 250 AD2d 855, 856), that the appellant violated the condition of his probation that he have no new arrests by being arrested on December 21, 2011, and, thereupon, properly vacated the prior order of disposition. The Presentment Agency elicited testimony from the police detective who arrested the appellant which established that the detective had probable cause to arrest the appellant. The Family Court found the detective to be credible and we discern no basis in the record to set aside the Family Court's credibility determination. There is no merit to the appellant's contention that the Presentment Agency failed to meet its burden of establishing the subject violation of probation because the violation of probation petition alleged that the appellant was arrested on December 8, 2011, rather than on December 21, 2011 (cf. Matter of Steven C., 93 AD3d 91, 94, citing Matter of Rodney J., 83 NY2d 503, 508).

The appellant also challenges the Family Court's determination to place him in the custody of the New York State Office of Children and Family Services (hereinafter the OCFS). The [*2]Family Court has broad discretion in determining the appropriate disposition in a juvenile delinquency case (see Matter of Jalen G., 104 AD3d 853; Matter of Antoine H., 81 AD3d 646). Here, the Family Court providently exercised its discretion in placing the appellant in the custody of the OCFS. The disposition was the least restrictive alternative consistent with the best interests of the appellant and the needs of the community in light of, inter alia, the seriousness of the offense and the appellant's previous violation of the terms and conditions of probation (see Family Ct Act § 352.2[2][a]; Matter of Jalen G., 104 AD3d at 854; Matter of Ashley P., 74 AD3d 1075, 1076).

The appellant's contention regarding a prior violation of probation petition is not properly before this Court.

The appellant's remaining contentions are without merit.
BALKIN, J.P., LEVENTHAL, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court