State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 520522 

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In the Matter of DANIEL TT.,

Alleged to be a Juvenile

Delinquent.

MEGHAN M. MANION, as MEMORANDUM AND ORDER

Montgomery County Attorney,

Respondent;

DANIEL TT.,

Appellant.

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Calendar Date: February 8, 2016

Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

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Rachel Rappazzo, Schenectady, for appellant.

Meghan M. Manion, County Attorney, Amsterdam (William E.

Lorman of counsel), for respondent.

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McCarthy, J.P.

Appeal from an order of the Family Court of Montgomery

County (Cortese, J.), entered October 22, 2014, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 3, to adjudicate respondent a juvenile delinquent.

In a juvenile delinquency petition filed by petitioner in

March 2014, respondent (born in 2000) was charged with, among

other things, acts which, if committed by an adult, would

constitute the crime of assault in the third degree, stemming

from punching a middle school special education teacher in the

groin. In July 2014, while the fact-finding hearing was
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underway, respondent admitted to the allegations of the count of

assault in the third degree in full satisfaction of the petition,

and the matter was set for a dispositional hearing. Following

the hearing, at which Family Court heard testimony from various

witnesses, the court adjudged respondent a juvenile delinquent

and ordered that he be placed in the custody of the Commissioner

of Social Services of Montgomery County for a period of 12

months. Respondent now appeals.

Pursuant to Family Ct Act § 340.1 (2), if the respondent is

not detained, as is the case here, "the fact-finding hearing

shall commence not more than sixty days after the conclusion of

the initial appearance except as provided in [Family Ct Act

§ 340.1 (4)]" (see Matter of Randy K., 77 NY2d 398, 400 [1991]). 

Adjournments may be granted "on motion by the respondent for good

cause shown for not more than thirty days" (Family Ct Act § 340.1

[4] [b]). The record reveals that the adjournments causing the

fact-finding hearing to take place more than 60 – but less than

90 – days after the initial appearance were caused by

respondent's consent or request. As such, respondent's claim of

a statutory speedy trial violation is unpreserved and, further,

any rights were affirmatively waived by respondent (see Matter of

Dashawn R., 114 AD3d 686, 686 [2014], lv denied 23 NY3d 901

[2014]; Matter of Curnelle T., 17 AD3d 472, 472 [2005]; Matter of

Joseph CC., 234 AD2d 852, 853-854 [1996]). Respondent's related

contention that he was denied the effective assistance of counsel

based on counsel's request and/or consent to such adjournments is

without merit. A motion based on a speedy trial violation would

have been unavailing given respondent's waiver, and the record

does not establish that counsel lacked a legitimate strategy for

delaying the fact-finding hearing (see Matter of Michael DD., 33

AD3d 1185, 1186 [2006]).

Respondent's contention that Family Court erred in not

ordering a diagnostic assessment for him, based on the fact that

he had an IQ of 74, is unpreserved (see Matter of George N.B., 57

AD3d 1456, 1456 [2008], lv denied 12 NY3d 706 [2009]; see

generally Family Ct Act § 351.1 [2]). In any event, and

considering the ample and diverse testimony before Family Court

regarding respondent's history and his then-current situation, we

find that the court did not abuse its discretion by not ordering
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such an assessment. 

Finally, Family Court's determination that placement with

the Commissioner was the least restrictive option available was

not an abuse of discretion. Pursuant to Family Ct Act § 352.2

(2) (a), "[i]n determining an appropriate [dispositional] order,

[Family Court] . . . shall order the least restrictive available

alternative enumerated in [Family Ct Act § 352.2 (1)] which is

consistent with the needs and best interests of the respondent

and the need for protection of the community." However, "a less

restrictive option need not be utilized unsuccessfully before a

more restrictive option may be imposed" (Matter of Morgan MM.,

128 AD3d 1140, 1141 [2015] [internal quotation marks and citation

omitted]; see Matter of Joshua LL., 132 AD3d 1201, 1202, [2015]). 

Considering the proof before Family Court that respondent's

mother was unable or unwilling to offer him appropriate support

regarding a variety of his needs, the proof regarding

respondent's escalating and violent behavior and proof indicating

that respondent had repeatedly failed to respond well in lessrestrictive educational settings, Family Court did not abuse its

discretion in placing respondent with the Commissioner for a

period of 12 months (see Matter of Morgan MM., 128 AD3d at 1141;

Matter of Trevor MM., 119 AD3d 1112, 1113 [2014]; Matter of

Tianna W., 108 AD3d 948, 949 [2013]). Respondent's remaining

contentions are without merit. 

Egan Jr., Rose, Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court