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

428
CAF 14-01015
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF JACOB A.T.,
RESPONDENT-APPELLANT.
----------------------------                      MEMORANDUM AND ORDER
YATES COUNTY ATTORNEY,
PETITIONER-RESPONDENT.
(APPEAL NO. 1.)


ARDETH L. HOUDE, ATTORNEY FOR THE CHILD, ROCHESTER, FOR
RESPONDENT-APPELLANT.

SCOTT P. FALVEY, COUNTY ATTORNEY, CANANDAIGUA (HAYDEN M. DADD OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Yates County (W.
Patrick Falvey, J.), entered May 12, 2014 in a proceeding pursuant to
Family Court Act article 3. The order, among other things, adjudged
that respondent is a juvenile delinquent and placed him in the custody
of the Yates County Department of Social Services for a period of 12
months.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the disposition and as
modified the order is affirmed without costs and the matter is
remitted to Family Court, Yates County, for further proceedings in
accordance with the following memorandum: In these three consolidated
appeals, respondent appeals from three orders, each adjudicating him
to be a juvenile delinquent based on the finding that he committed
acts that, if committed by an adult, would constitute the crime of
petit larceny (Penal Law § 155.25), in appeal Nos. 1 and 2, and the
crime of criminal possession of stolen property in the fifth degree (§
165.40), in appeal No. 3. After a dispositional hearing, Family Court
placed respondent in the custody of the Yates County Department of
Social Services (DSS) for a period of 12 months on each adjudication.

     Respondent contends that the disposition placing him in the
custody of DSS for one year is not the least restrictive disposition.
It is well settled that, when determining an appropriate disposition
in a juvenile delinquency case involving acts that are not felonies,
“the court shall order the least restrictive available alternative”
and “shall consider the needs and best interests of the respondent as
well as the need for protection of the community” (Family Ct Act §
352.2 [2] [a]; see generally Matter of Leporia L.L., 83 AD3d 1539,
1539). Although “[t]he court has broad discretion in determining the
appropriate disposition in juvenile delinquency cases” (Matter of
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                                                         CAF 14-01015

Richard W., 13 AD3d 1063, 1064), we agree with respondent that the
court abused its discretion under the circumstances presented here.
The evidence presented at the dispositional hearing and the
predispositional and probation update reports prepared in conjunction
with that hearing establish that respondent’s home environment was
“toxic” and he suffered from mental health issues that required
treatment. In addition, the update to the original report indicated
that respondent had recently been staying with a family friend who had
known him since birth, that the friend had petitioned for custody of
respondent, and that there had been no new arrests during that time.
The update also indicated that the friend was able to devote
significant time to supervising respondent, and that the friend
resided with a woman who managed a residential home. In addition,
both the family friend and the woman with whom he lived testified at
the dispositional hearing that they could help with respondent’s
supervision. Consequently, “we agree with [respondent] that the court
erred in failing to consider the least restrictive available
alternative in fashioning an appropriate dispositional order” (Matter
of Nicolette R., 9 AD3d 270, 271, lv denied 3 NY3d 610). We therefore
modify the order by vacating the disposition and, in light of the
lapse of time since the order was entered, we remit the matter to
Family Court for a new dispositional hearing.




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
