IN THE MATTER OF LEON H. (ANONYMOUS),
83 N.Y.2d 834, 633 N.E.2d 1102, 611 N.Y.S.2d 498 (1994).
2 No. 142 SSM 3 [1994 NY Int. 054]
March 29, 1994
Decided March 29, 1994
This memorandum is uncorrected and subject to revision before publication in the New York Reports. MEMORANDUM:
The order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.
In the instant case, the presentment agency appeals by leave of this Court from an order of the Appellate Division affirming Family Court's dismissal of a juvenile delinquency petition charging respondent with conduct constituting various criminal offenses, including, inter alia, assault and criminal possession of a weapon.
The dismissal was granted after the fact-finding hearing was concluded by respondent's admission to acts constituting criminal possession of a weapon in the fourth degree. Family Court dismissed the petition on the ground that delays in holding the dispositional hearing in this proceeding violated the time constraints of Family Court Act § 350.1 and that no showing of special circumstances had been made to excuse the delay (see, Family Ct Act § 350.1 ). The Appellate Division affirmed (_____ AD2d _____).
There should be a reversal and remittal to the Appellate Division with directions to dismiss the appeal. In contrast to Matter of Jose R. (decided herewith) it was Family Court that in the first instance dismissed the petition for noncompliance with Family Court Act § 350.1 following the fact- finding hearing. Family Court Act §§ 365.1 and 365.2 were intended to supersede the general appeals provisions of the Family Court Act (article 11) and, by implication, exclusively govern appeals to the Appellate Division in juvenile delinquency proceedings (see, Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Pt. 1, Family Ct Act §§ 365.1, 365.2, at 584, 586). Only a respondent is permitted to appeal by permission to the Appellate Division (Family Ct Act § 365.2).
An order dismissing the petition, as was granted by Family Court in the instant case, is only appealable by a presentment agency to the Appellate Division as of right if the dismissal was made before the commencement of the fact-finding hearing (Family Ct Act § 365.1 [a]). Contrary to the presentment agency's contention here, the order of dismissal, although finally determining this proceeding, was not an order of disposition within the meaning of Family Court Act article 3 (see, Family Ct Act § 352.2), and thus was not appealable pursuant to Family Court Act § 365.1 (2)(b).
It follows from the foregoing analysis that the Appellate Division lacked jurisdiction to entertain the presentment agency's appeal from Family Court's dismissal of the petition. Accordingly, the Appellate Division's order of affirmance should be reversed and the matter remitted to that Court with directions to dismiss the appeal.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein. Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur. Judge Titone took no part.