Family Court Act, Article 3, Juvenile Delinquency Part 6, § 365.3: Notice of Appeal
A juvenile delinquency case has two major parts: the fact-finding hearing and the dispositional hearing. The fact-finding hearing is similar to a criminal trial. The accused minor is known as the "respondent" and the party bringing the case is known as the "presentment agency." A juvenile delinquency case begins when the presentment party files a petition with Family Court. At a fact-finding hearing a determination is not made as to whether or not the accused is guilty or not guilty. Instead, a determination is made as to whether or not the minor did the acts described in the petition that for an adult would amount to a crime. If so, the next step is the dispositional hearing. The dispositional hearing is analogous to the sentencing phase of a criminal case. At the conclusion of the dispositional hearing the judge will issue an "order of disposition." The law, however, gives both the respondent and the presentment agency the right to appeal. Under Family Court Act, Article 3, Part 6, § 365.3 the procedure for filing an appeal are as follows:
- A written notice of appeal must be filed in duplicate with the clerk of the family court in which the order was entered.
- If the respondent is the appellant, the respondent must serve a copy of such notice of appeal upon the appropriate presentment agency.
- If the presentment agency is the appellant, the presentment agency must serve a copy of such notice of appeal upon the respondent and upon the attorney or law guardian who last appeared for the respondent in the Family Court.
- The clerk of the Family Court must endorse the Note of Appeal and transmit the duplicate to the clerk of the appropriate appellate division of the supreme court.
A juvenile delinquency petition was filed accusing Delila M. of committing acts which, if committed by an adult, would constitute the crimes of criminal trespass in the second degree and criminal mischief in the fourth degree. On the date of the fact-finding hearing the police officer who was the petitioner's witness was not present in court. Because of that the judge dismissed the juvenile delinquency petition, noting that the petitioner was not ready for the fact-finding hearing. The petitioner appealed. The petitioner served a notice of appeal on the respondent's law guardian, as required by law. However, the petitioner had failed to serve the respondent herself, as is also required by law. Respondent argued that his omission deprived the court of jurisdiction to hear the appeal. The court ruled that the petitioner's omission does not deprive it of jurisdiction to hear the appeal and the court may grant the petitioner leave to remedy its omission and to serve the respondent with a notice of appeal. Delila M., Matter of, 656 N.Y.S.2d 306 (N.Y.A.D. 2 Dept., 1997)Related Statutory Provisions
- Appeal; authorized as of right: New York Family Court Act, Article 3, Juvenile Delinquency, Part 6, § 365.1
- Appeal by permission: New York Family Court Act, Article 3, Juvenile Delinquency, Part 6, § 365.2
- An appeal shall be taken by filing a written notice of appeal, in duplicate, with the clerk of the family court in which the order was entered.
- If the respondent is the appellant, he must also serve a copy of such notice of appeal upon the appropriate presentment agency.
- If the presentment agency is the appellant, it must serve a copy of such notice of appeal upon the respondent and upon the attorney or law guardian who last appeared for him in the family court.
- Following the filing with him of the notice of appeal in duplicate, the clerk of the family court must endorse upon such instruments the filing date and must transmit the duplicate notice of appeal to the clerk of the appropriate appellate division of the supreme court.
If a delinquency petition has been filed against your child it is critical that your child has experienced representation from the beginning of the case until it is resolved. Juvenile delinquency procedure is complicated. The outcome of your child's case could have a significant impact on his or her future. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing juvenile clients in New York Family Court as well as in criminal court who have been accused of committing misdemeanors and felonies. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those involved in juvenile delinquency matters in the following locations: