S., JR., MICHAEL, MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1180
CAF 12-00203
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF MICHAEL S., JR.,
RESPONDENT-APPELLANT.
--------------------------------- MEMORANDUM AND ORDER
MONROE COUNTY ATTORNEY,
PETITIONER-RESPONDENT.
TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER, FOR
RESPONDENT-APPELLANT.
WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (SCOTT WILLIAM
WESTERVELT OF COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Monroe County (Joan S.
Kohout, J.), entered December 29, 2011 in a proceeding pursuant to
Family Court Act article 7. The order, among other things, placed
respondent in the custody of the Commissioner of Health and Human
Services of Monroe County for a period of 12 months.
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the petition is dismissed.
Memorandum: Respondent appeals from a dispositional order
entered in a violation of probation proceeding pursuant to Family
Court Act § 779. The order revoked respondent’s probation and imposed
a placement outside of his home for a period of 12 months.
Respondent’s appeal from the dispositional order brings up for review
the denial of respondent’s motion to dismiss the violation petition
(see CPLR 5501 [a] [1]; Matter of James L. [appeal No. 2], 74 AD3d
1775, 1775). We conclude that Family Court erred in denying that
motion. In the absence of the filing of a declaration of delinquency
pursuant to Family Court Act § 779-a, which tolls a disposition of
probation pending a final determination on the violation petition, the
court’s authority to enter a dispositional order expired on the date
on which the order of probation expired (see §§ 779, 779-a).
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court