In re Kyung C.

Jan 14, 1991
Versions:169 A.D.2d 721
564 N.Y.S.2d 471
1991 N.Y. App. Div. LEXIS 439

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Cozier, J.), dated June 14, 1989, which, upon a fact-finding order of the same court, dated April 27, 1989, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree, adjudged him to be a juvenile delinquent and conditionally discharged him for a period of six months. The appeal brings up for review the fact-finding order dated April 27, 1989.

Ordered that the order of disposition is reversed, as a matter of discretion in the interest of justice, without costs or disbursements, the fact-finding order is vacated, the petition is dismissed and the appellant’s record is sealed pursuant to Family Court Act § 375.1.

There was insufficient evidence adduced at the dispositional hearing to demonstrate by a preponderance of the evidence that the appellant was in need of supervision, treatment or confinement. Consequently, the petition should have been dismissed (see, Family Ct Act § 350.3 [2]; § 352.1 [2]; Matter of Jens P., 159 AD2d 707). The only evidence offered at the dispositional hearing was a report by the Probation Department which essentially concluded that the underlying incident was an isolated event and that the appellant received adequate supervision by his parents. Thompson, J. P., Kunzeman, Lawrence and O’Brien, JJ., concur.