         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
37
CAF 10-01639
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


IN THE MATTER OF DANTE P., RESPONDENT-APPELLANT.
------------------------------------------------   MEMORANDUM AND ORDER
ERIE COUNTY ATTORNEY, PETITIONER-RESPONDENT.


DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

CHERYL A. GREEN, COUNTY ATTORNEY, BUFFALO (MICHAEL J. LISZEWSKI OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an amended order of the Family Court, Erie County
(Paul G. Buchanan, J.), entered October 21, 2010 in a proceeding
pursuant to Family Court Act article 3. The amended order adjourned
the petition in contemplation of dismissal.

     It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding pursuant to
article 3 of the Family Court Act, alleging that respondent and other
juveniles committed acts that, if committed by an adult, would
constitute the crime of unauthorized use of a vehicle in the third
degree (Penal Law § 165.05 [1]). Respondent appeals from an order
that, inter alia, granted an adjournment in contemplation of dismissal
(ACD) of the proceeding upon the condition that he pay $800 as
restitution for damage to the vehicle that he and the other juveniles
used. We note at the outset that the order was superseded by a
subsequent amended order, from which no appeal was taken. In the
exercise of our discretion, however, we treat the notice of appeal as
valid and deem the appeal as taken from the amended order (see Matter
of Steven M., 37 AD3d 1072; see also CPLR 5520 [c]). Further, we
conclude that the appeal is not moot inasmuch as the ACD has been
extended by a subsequent order of Family Court.

     Contrary to respondent’s contention, the court did not abuse its
discretion in ordering restitution as a condition of the ACD (see
generally Family Ct Act § 315.3 [1]; 22 NYCRR 205.24 [a]). Respondent
accepted the ACD, which the court unequivocally conditioned upon
payment of restitution. Furthermore, the testimony of the victim
regarding the damage to his vehicle arising from its use by respondent
and the other juveniles was sufficient to warrant the imposition of
restitution (cf. Matter of David N., 97 AD2d 980).
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                                                         CAF 10-01639

     Respondent failed to preserve for our review his further
contention that the court was required to consider his ability to pay
before ordering him to pay restitution, and we decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see Matter of Arceny H., 59 AD3d 262; see
generally Matter of George N.B., 57 AD3d 1456, lv denied 12 NY3d 706;
Matter of Yadiel Roque C., 17 AD3d 1168).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
