Respondent has moved for an order pursuant to Family Court Act §176 transferring the

supervision of his probation from the City of New York Department of Probation to the Ulster

County Department of Probation.

By petition filed on May 24, 2010, as superseded by the petition filed on June 4, 2010,

respondent was alleged to be a juvenile delinquent based upon his commission of acts which,

were he an adult, would constitute the crimes of Robbery in the Second Degree, Assault in the

Second and Third Degrees, Grand Larceny in the Fourth Degree, Criminal Possession of Stolen

Property in the Fifth Degree, and Menacing in the Third Degree. By order dated May 27, 2010,

and upon respondent's admission entered pursuant to Family Court Act §321.2 (3) and §321.3,

the Court entered an order finding that respondent committed an act which, were he an adult,

would constitute the crime of Robbery in the Second Degree (P.L. §160.10 [1]). A dispositional [*2]

hearing was scheduled and the Court directed that the Department of Probation conduct an

investigation and prepare a report for the hearing. In addition, the Family Court Mental Health

Services Clinic was directed to conduct an evaluation of the respondent (Fam. Ct. Act §351.1

[2]).

The dispositional hearing commenced on June 7, 2010 and it concluded on August 2,

2010. Based upon the evidence adduced at the hearing the Court adjudicated respondent to be a

juvenile delinquent (Fam. Ct. Act §352.1 [1]), and respondent was placed under the supervision

of the Enhanced Supervision Program of the New York City Department of Probation for a

period of 24 months (Fam. Ct. Act §§352.2 [1] [b]; 353.2). An order of protection was issued in

conjunction with the order of disposition directing, inter alia, that the respondent stay away from

specific individuals and that he stay away from specific locations (Fam. Ct. Act §352.3).

On March 31, 2011 the attorney for the respondent filed this motion by order to show

cause seeking an order transferring the supervision of respondent's probation from the New York

City Department of Probation to the Ulster County Department of Probation. The basis for the

motion is that respondent moved with his family from Kings County, where he resided at the

time that probation supervision was ordered, to an address in Kingston, New York on August 20,

2010. According to respondent's attorney "[t]he purpose of the relocation was to remove the

respondent from an environment his mother found unsuitable for raising children, and to move

him and his siblings to surroundings better suited for that purpose."

Respondent's attorney reports that based upon his conversation with the Probation Officer

who supervised respondent's probation from August 2, 2010 until respondent's relocation on

August 20, 2010, "the respondent's adjustment to probation was fair'". In addition, respondent's [*3]

attorney states that respondent has been "informally" supervised by the Ulster County

Department of Probation since his relocation to Kingston pursuant to a request made by

the New York City Department of Probation, but that the Ulster County Department of Probation

cannot continue to supervise the respondent absent a court order transferring probation supervision to that jurisdiction.^[FN1] Given that respondent's probationary period is scheduled to

continue through August 1, 2012, respondent requests that this Court transfer probation

supervision to Ulster County under the same terms and conditions set forth in the August 2, 2010

order of disposition.

In response to respondent's motion, the Presentment Agency states that "it reserves its

position on respondent's request for the transfer of probation supervision to Ulster County where

the respondent apparently now resides, pending additional information. The Presentment Agency

would like an update as to the court imposed conditions of probation."^[FN2] More specifically, the

Presentment Agency requests that the Court order, or that the respondent obtain, information as

to whether the Ulster County Department of Probation can offer probation supervision which is

equivalent to the "enhanced supervision" ordered by this Court, information concerning [*4]

respondent's school attendance, "an update as to how many hours of the 300 ordered hours of

community service the respondent has performed, an update as to the respondent's adherence to

curfew, and an update as to any/all drug and alcohol tests and their results."

In a juvenile delinquency proceeding "[t]he court may order a period of probation if the

court, having regard for the nature and circumstances of the crime and the history, character and

condition of the respondent, is of the opinion that: (a) placement of the respondent is not or may

not be necessary; (b) the respondent is in need of guidance, training or other assistance which can

be effectively administered through probation; and (c) such disposition is consistent with the

provisions of subdivision two of section 352.2", relating to the needs and best interests of the

respondent as well as the need for protection of the community (Fam. Ct. Act §353.2 [1]).

The maximum period of probation supervision authorized by the statute is two years,

(Fam. Ct. Act §353.2 [6]) and a respondent who is placed on probation remains under the legal

jurisdiction of the court pending expiration or termination of the period of probation (Fam. Ct.

Act §360.1 [1]; Matter of Markim Q., 7 NY3d 405, 410; Matter of Jazmin A., 15 NY3d 439,

444).

Where a juvenile delinquent fails to comply with the terms and conditions of probation

the statute provides for post-dispositional proceedings. Where a probation service has

"reasonable cause to believe that the respondent has violated a condition" of probation, a

petition of violation may be filed with the Family Court (Fam. Ct. Act §360.2 [1]). If the court

finds upon a hearing or upon the respondent's admission that there has been a violation, "the

court may revoke, continue or modify the order of probation" (Fam. Ct. Act §360.3 [6]), and [*5]

where probation is revoked, the court may "order a different disposition pursuant to section

352.2" (id.; e.g., Matter of Vito G.L., 27 AD3d 471; Matter of Jerwin R., 46 AD3d 334, 334-335,

lv denied 10 NY3d 711).

The controlling statutory authority in this instance is Family Court Act §176. That section

reads as follows:

If a person placed under probation by the family court resides in or moves

to a county other than the county in which [s]he was placed on probation,

the family court which placed him [or her] on probation may transfer the

proceedings to the county in which the probationer resides or to which

[s]he has moved or may place him under the supervision of the probation

service attached to the family court in which the probationer resides or to

which [s]he has moved.

The authority to transfer the supervision of a juvenile delinquent placed on probation from the

probation service of one county to that of another county has existed since the creation of the

Family Court (see, L. 1962, ch 686). Similar authority exists for a criminal court to transfer

supervision of an adult sentenced to probation from the county in which the sentence is imposed

to another county within the state (Criminal Procedure Law §410.80), and the state Division of

Probation and Correctional Alternatives has promulgated specific regulations which address the

intra-state transfer of probation supervision of children and adults (9 NYCRR §§349.1-349.7).

While the better practice is for the probationer to seek judicial authorization for an intra-

state transfer of supervision from the probation service in the sentencing jurisdiction to that of

another county, in this case it appears that the respondent and his family relocated from New

York City to Ulster County in August of 2010. Since that relocation, the Ulster County

Department of Probation has, even in the absence of a court order transferring probation [*6]

supervision, undertaken supervision of the respondent's compliance with this Court's order of

disposition. That supervision occurred based upon an informal request which was apparently

made by the New York City Department of Probation after it became aware of respondent's

relocation. Respondent will remain under probation supervision through August 1, 2012, and as

of the date of the motion, there is no evidence that a petition of violation has ever been filed

before this Court or before the Ulster County Family Court by either probation department.

The Presentment Agency's argument that this Court should "investigate" respondent's

current personal and family circumstances and obtain information as to respondent's compliance

with the terms and conditions of the Court's order of probation before any transfer of probation

supervision, is misplaced. While this Court placed respondent on probation for a two year period

and this Court retains jurisdiction over the respondent during the period of probation, that

"continuing jurisdiction does not vest the Family Court with the power to take actions not

authorized by article 3" (Matter of Jazmin A. at 444).

Under the statutory scheme it is the Department of Probation rather than the Court which

is charged with the responsibility for "monitoring" respondent's compliance with the terms and

conditions of probation. The relevant sections of article 3 do not provide for judicial

"monitoring" of juveniles placed under probation supervision and the Court's role is limited to

the adjudication of a petition of violation should such a petition be filed by the Department of

Probation.^[FN3] However, there is nothing which prevents the Presentment Agency or respondent's [*7]attorney from requesting that the New York City Department of Probation request that the Ulster

County Department of Probation provide a status report concerning respondent's compliance

with the order of probation.

It is therefore,

ORDERED, that the motion is granted to the extent that supervision of the respondent

during the period of probation imposed by the order dated August 2, 2010 is forthwith transferred

from the New York City Department of Probation to the Ulster County Department of Probation.

This constitutes the decision and order of the Court.^[FN4]

E N T E R:

_______________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

April 8, 2011