        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1169
CAF 14-00547
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF KAYLA F.,
RESPONDENT-APPELLANT.
---------------------------------                 MEMORANDUM AND ORDER
MONROE COUNTY PRESENTMENT AGENCY,
PETITIONER-RESPONDENT.


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

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

     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
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                                                         CAF 14-00547

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
