Jimmy de Sorte

Full title: In the Matter of JIMMY D., a Person Alleged to be a Juvenile Delinquent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 2, 2009

Facts

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Lubow, J.), dated July 17, 2008, which, upon a fact-finding order of the same court dated August 23, 2007, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, criminal sexual act in the third degree, sexual misconduct, unlawful imprisonment in the second degree (two counts), course of sexual conduct against a child in the second degree, attempted sexual abuse in the first degree, and attempted sexual abuse in the third degree, adjudged him to be a juvenile delinquent, and placed him on probation or a period of 18 months. The appeal brings up for review the fact-finding order, and the denial, after a hearing, of that branch of the appellant’s omnibus motion which was to suppress his written statement to a police detective.

Issue

Decision

The Family Court dismissed the sexual misconduct count in its oral decision on the record made after the fact-finding hearing. However, the fact-finding order and the order of disposition include a finding as to this count. “‘A written order must conform strictly to the court’s decision'” ( Scheuering v Scheuering, 27 AD3d 446, 447, quoting Di Prospero v Ford Motor Co., 105 AD2d 479, 480). Where there is a conflict, the decision controls ( see Verdrager v Verdrager, 230 AD2d 786, 787; Green v Morris, 156 AD2d 331; Di Prospero v Ford Motor Co., 105 AD2d at 480). An inconsistency between the two may be corrected either by way of a motion for resettlement or on appeal ( see CPLR 2221, 5019 [a]; Spier v Horowitz, 16 AD3d 400; Green v Morris, 156 AD2d at 331; Young v Casabonne Bros., 145 AD2d 244, 248). Therefore, we modify the order of disposition and the fact-finding order to conform to the Family Court’s oral decision.

The appellant’s remaining contentions are without merit.

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