S., SAMED, MTR. OF ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    611
    CAF 10-02034
    PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND MARTOCHE, JJ.
    IN THE MATTER OF SAMED S., MAURICE R., MALIK S.,
    JOSEFT A., FRANSHESKA D., AMAURI R., AND
    ADELL H.-S.
    ------------------------------------------------   MEMORANDUM AND ORDER
    ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
    PETITIONER-RESPONDENT;
    SALEH A., RESPONDENT-APPELLANT,
    AND BRAUNA S., RESPONDENT.
    DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
    JOSEPH T. JARZEMBEK, BUFFALO, FOR PETITIONER-RESPONDENT.
    SHEILA SULLIVAN DICKINSON, ATTORNEY FOR THE CHILDREN, BUFFALO, FOR
    SAMED S., MAURICE R., MALIK S., JOSEFT A., AMAURI R., AND ADELL H.-S.
    DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
    BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR
    FRANSHESKA D.
    Appeal from an order of the Family Court, Erie County (Margaret
    O. Szczur, J.), entered September 10, 2010 in a proceeding pursuant to
    Family Court Act article 10. The order adjudicated the subject
    children to be neglected and abused.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Respondent father appeals from an order adjudging
    several children under his care and control to be neglected and
    abused. Prior to the hearing on the issue whether the father was “a
    person legally responsible” pursuant to Family Court Act § 1012 (g),
    the father had pleaded guilty to sexually abusing one child
    (hereafter, victim) and was sentenced to a term of incarceration. We
    reject the father’s contention that the petition should have been
    dismissed because he pleaded guilty to a count in the indictment that
    alleged sexual contact in December 2004, not July 2006, as alleged in
    the Family Court petition. The proof adduced at the hearing on the
    issue whether the father was a “person legally responsible”
    established that the sexual contact occurred in December 2004. Thus,
    inasmuch as the proof does not conform to the allegations of the
    petition, the court may amend the allegations to conform to the proof
    (see § 1051 [b]), and the petition is not subject to dismissal on that
    -2-                           611
    CAF 10-02034
    ground. We have considered the father’s remaining contentions and
    conclude that they are without merit.
    Entered:   June 8, 2012                        Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CAF 10-02034

Filed Date: 6/8/2012

Precedential Status: Precedential

Modified Date: 10/8/2016