60 A.D.2d 997 | N.Y. App. Div. | 1978
Order unanimously reversed and matter remitted to Cayuga County Family Court for further proceedings in accordance with the following memorandum: Respondent appeals from an order adjudicating him a juvenile delinquent because he committed acts which if done by an adult would constitute the crimes of criminal trespass, third degree, and criminal mischief, fourth degree. The offenses charged occurred when respondent, in the company of two other boys, entered a hospital during visiting hours and ran through the halls tearing down Halloween decorations. Respondent challenges the sufficiency of the evidence and various procedural irregularities. A person is guilty of criminal trespass, third degree, when he knowingly enters or remains in a building unlawfully (Penal Law, § 140.10). Entering or remaining unlawfully as it applies to public buildings is defined in subdivision 5 of section 140.00 of the Penal Law. Since the proof did not establish that respondent defied a lawful order not to enter or remain in this public building personally communicated to him, he was lawfully upon the premises and the criminal trespass charge is dismissed. The evidence supports the adjudication based upon criminal mischief. The record does not indicate that respondent received the statutory notice of his right to remain silent required by section 741 of the Family Court Act, however, and the order is reversed insofar as it makes a finding of criminal mischief, and the case is remitted for a new hearing (see Matter of Troy L., 53 AD2d 615). Inasmuch as there will be a new hearing, we point out that there is no indication in the record of the information which the court relied upon in the dispositional hearing. The obligation rests upon the court to provide the parties with an opportunity to speak and to include in the record the information which provides the basis for its decision (see Matter of Raoul P., 27 AD2d 522). (Appeal from order of Cayuga County Family Court—juvenile delinquent.) Present— Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.
