Opinion
March 11, 1968
Appeal by a juvenile (by his Law Guardian) from an order of the Family Court, County of Westchester, dated May 26, 1967 (stayed pending the instant appeal), which adjudged that he is a person in need of supervision and committed him for 18 months to the custody of Berkshire Farm for Boys, Canaan, New York, effective as of May 29, 1967, subject to the further order of the court. The order under review was made after appellant had been arraigned on April 13, 1966, without representation by counsel, when he admitted the allegations contained in a petition charging him with juvenile delinquency. Upon such admission he was adjudged a juvenile delinquent and was placed on probation for a year. Thereafter, a Law Guardian was appointed for him and, on consent, the prior adjudication was changed from juvenile delinquency to a determination that he was a person in need of supervision. A hearing was held on May 26, 1967 for the purpose of determining the disposition of this proceeding on the basis of the latter determination. Order dated May 26, 1967, reversed, on the law and the facts, without costs, and proceeding dismissed. In our opinion, appellant's original admissions of the commission of acts amounting to juvenile delinquency, made without representation by counsel, were procured in deprivation of his and his parents' constitutional rights and privileges and may not serve as a predicate for any effective determination ( Matter of Gault, 387 U.S. 1; Matter of William L. [ Anonymous], 29 A.D.2d 182). Moreover, the totality of facts adduced at the hearing held on May 26, 1967, particularly as developed by the Law Guardian, negatived the conclusion that appellant was a person in need of supervision, within the meaning of the applicable statute, that is, that he was "an habitual truant or * * * incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority" (Family Ct. Act, § 712, subd. [b]). Brennan, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.