In re Gabriela A.
Matter
of Gabriela A.
2013
NY Slip Op 01263
Decided
on February 27, 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 February 27, 2013
SUPREME
COURT OF THE STATE OF NEW YORK
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO
E. RIVERA, J.P.
JOHN
M. LEVENTHAL
L.
PRISCILLA HALL
SHERI
S. ROMAN, JJ.
2012-05442
(Docket
No. D-4697-12)
[*1]In
the Matter of Gabriela A. (Anonymous), appellant.
George
E. Reed, Jr., White Plains, N.Y., for appellant.
Robert
F. Meehan, County Attorney, White Plains, N.Y. (James
Castro-Blanco
and Linda M.
Trentacoste
of counsel), for respondent.
DECISION
& ORDER
In
a juvenile delinquency proceeding pursuant to Family Court Act article 3, the
appeal is from an order of disposition of the Family Court, Westchester County
(Malone, J.), entered May 18, 2012, which, upon a fact-finding order of the
same court entered April 3, 2012, finding that the appellant committed acts
which, if committed by an adult, would have constituted the crimes of resisting
arrest and obstructing governmental administration in the second degree,
adjudged her to be a juvenile delinquent and imposed a conditional discharge
until April 13, 2013. The appeal from the order of disposition brings up for
review the fact-finding order.
ORDERED
that the order of disposition is reversed, on the law, without costs or
disbursements, the fact-finding order is vacated, the petition is dismissed,
and the matter is remitted to the Family Court, Westchester County, for further
proceedings pursuant to Family Court Act § 375.1.
On
February 28, 2012, the Family Court remanded the appellant, who was previously
adjudicated a person in need of supervision (hereinafter PINS), to a nonsecure
detention facility, but she absconded that same day. On March 10, 2012, several
probation officers executed a warrant at the appellant's home. The appellant
allegedly resisted the officers' attempts to return her to the detention
facility.
Subsequently,
the petitioner filed a juvenile delinquency petition against the appellant
based on her conduct at the time of the execution of the warrant on March 10,
2012. The petition charged the appellant with, among other things, resisting
arrest and obstructing governmental administration. The appellant was remanded
to secure detention in connection with the juvenile delinquency petition.
Following a fact-finding hearing, the appellant was found to have committed
acts which, if committed by an adult, would have constituted the aforementioned
crimes. The court issued an order of disposition entered May 18, 2012,
adjudging the appellant to be a juvenile delinquent and imposing a conditional
discharge until April 13, 2013.
"A
PINS is one who is, inter alia, incorrigible, ungovernable or habitually
disobedient and beyond the lawful control of a parent or other person legally
responsible for such [*2]child's care'" (Matter of Daniel I., 57 AD3d 666,
667, quoting Family Ct Act § 712[a]).
Under
the particular circumstances of this case, the appellant's conduct was
consistent with PINS behavior, not with juvenile delinquency (see Matter of
Daniel I., 57 AD3d at 667; Matter of Jasmine A., 284 AD2d 452, 453; Matter of
Naquan J., 284 AD2d 1, 6). "[T]he Family Court may not do indirectly what
it is prohibited from doing directly—placing a PINS in a secure facility"
(Matter of Jasmine A., 284 AD2d at 453). Accordingly, we reverse the order of
disposition, vacate the fact-finding order, dismiss the juvenile delinquency
petition, and remit the matter to the Family Court, Westchester County, for
further proceedings pursuant to Family Court Act § 375.1.
RIVERA,
J.P., LEVENTHAL, HALL and ROMAN, JJ., concur.
ENTER:
Aprilanne
Agostino
Clerk
of the Court