Opinion
Nos. 2007-09229, (Docket Nos. B-18340-06, B-18341-06, B-18342-06 B-19183-06).
August 5, 2008.
In four related proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the ground of abandonment, the father appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Sweeney, J.), dated September 28, 2007, which, after a fact-finding hearing, and upon a decision of the same court dated September 10, 2007, found that the father abandoned the subject children, terminated his parental rights on the ground of abandonment, and transferred custody and guardianship of the children to the Suffolk County Department of Social Services for the purposes of adoption.
Christine Malafi, County Attorney, Central Islip, N.Y. (Gary Rosenthal of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom of counsel), attorney for the children.
Before: Mastro, J.P., Dillon, Eng and Belen, JJ.
Ordered that on the Court's own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the order of fact-finding and disposition ( see CPLR 5520 [c]); and it is further,
Ordered that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The Family Court properly found, upon clear and convincing evidence, that the father abandoned the subject children for the six-month period immediately prior to the filing of the petitions ( see Social Services Law § 384-b [b]; Matter of Female E., 40 AD3d 993, 993-994). While the father, who was incarcerated during that period, testified that he was discouraged or prevented from communicating with the children, the Family Court did not credit that testimony, and we find no reason to disturb that determination ( see Matter of Orange County Dept. of Social Servs. [Diane A.], 203 AD2d 367; cf. Matter of Annette B., 4 NY3d 509, 514).
The father's remaining contention is without merit. Skelos, J.P., Covello, Leventhal and Belen, JJ., concur. 21 In the Matter of DEMETRI B., Appellant. 862 N.Y.S.2d 582" In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Weinstein, J.), dated August 29, 2007, which, upon a fact-finding order of the same court dated June 27, 2007, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of gang assault in the second degree and menacing in the third degree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months. The appeal brings up for review the fact-finding order dated June 27, 2007.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The appellant's contention that he was denied his right to effective cross-examination is unpreserved for appellate review ( cf CPL 470.05; People v Marino, 21 AD3d 430, 432; People v Fernandez, 280 AD2d 680, 681). In any event, the appellant's contention is without merit. The appellant was afforded a full and fair opportunity to expose infirmities in the complainant's testimony through cross-examination ( see Delaware v Fensterer, 474 US 15, 22; People v Mercado, 237 AD2d 200; Matter of Malik S.J., 200 AD2d 621; People v Barton, 183 AD2d 836). The appellant did not have any right to a witness who is free from forgetfulness, confusion, or evasion ( see Delaware v Fensterer, 474 US at 21-22; People v Barton, 183 AD2d at 836).
Viewing the evidence in the light most favorable to the presentment agency ( see Matter of David H., 69 NY2d 792, 793), we find that it was legally sufficient to establish that the appellant committed an act which, if committed by an adult, would have constituted the crimes of gang assault in the second degree and menacing in the third degree. Moreover, resolution of issues of credibility is primarily a matter to be determined by the finder of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal ( see Matter of Willie W., 32 AD3d 479, 480; cf. People v Romero, 7 NY3d 633, 644-645). Upon the exercise of our factual review power ( cf CPL 470.15), we are satisfied that the findings of fact were not against the weight of the evidence ( see Matter of Willie W., 32 AD3d at 480; cf. People v Romero, 7 NY3d at 633).