In re Rodney D. , 120 A.D.2d 737 ( 1986 )

— In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Esquirol, J.), dated August 23, 1984, which, upon a fact-finding order dated August 2, 1984, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of criminal trespass in the second degree, placed him on probation under the supervision of the Probation Department of the County of Kings for a period of one year.

Order of disposition reversed, in the interest of justice, without costs or disbursements, fact-finding order vacated, and petition dismissed.

On appeal, the respondent concedes that the finding here, that the appellant had not committed an act constituting criminal trespass in the third degree (see, Penal Law § 140.10), but had committed an act constituting criminal trespass in the second degree (see, Penal Law § 140.15) was inconsistent, and should not be used to support a determination of juvenile delinquency. We agree that the finding should not be permitted to stand, despite the fact that the error of law was not preserved for appellate review (see, People v Jamerson, 99 AD2d 816; cf. People v Satloff, 56 NY2d 745, 746).

We have considered the appellant’s other contention and find it to be without merit. Gibbons, J. P., Eiber, Kunzeman and Kooper, JJ., concur.