Opinion
2011-04-12
In the Matter of ELIAS E. (Anonymous), appellant.
Warren S. Hecht, Forest Hills, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Allan Y. Drian of counsel), for respondent.
Warren S. Hecht, Forest Hills, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Allan Y. Drian of counsel), for respondent.
ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Elias E. appeals from an order of disposition of the Family Court, Orange County (Bivona, J.), entered March 12, 2010, which, upon a fact-finding order of the same court dated the same day, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of manslaughter in the second degree, assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, adjudged him to be a juvenile delinquent and placed him in the custody of the New York State Office of Children and Family Services for a period of 18 months. The appeal from the order of disposition brings up for review the fact-finding order and four orders of protection issued at the dispositional hearing.
ORDERED that the order of disposition is affirmed, without costs or disbursements, the orders of protections are vacated, on the law and as an exercise of discretion in the interest of justice, and the matter is remitted to the Family Court, Orange County, for further proceedings in accordance herewith.
Viewing the evidence presented at the fact-finding hearing in the light most favorable to the presentment agency ( see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621;Matter of Jonathan D., 33 A.D.3d 996, 997, 826 N.Y.S.2d 301), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of manslaughter in the second degree ( seePenal Law § 125.15[1]; cf. People v. Boyce, 36 A.D.3d 711, 828 N.Y.S.2d 192;People v. Rodriguez, 33 A.D.3d 730, 826 N.Y.S.2d 271), and assault in the second degree ( seePenal Law § 120.05 [2]; Matter of Robert C., 67 A.D.3d 790, 888 N.Y.S.2d 192;cf. People v. Millett, 26 A.D.3d 345, 812 N.Y.S.2d 554). The evidence credited by the Family Court disproved the appellant's defense of justification beyond a reasonable doubt ( seePenal Law § 35.15[2][a]; Matter of Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313;Matter of Quamel D., 78 A.D.3d 1050, 1051, 911 N.Y.S.2d 471;Matter of Jean V., 64 A.D.3d 664, 883 N.Y.S.2d 121;Matter of Louis C., 38 A.D.3d 541, 830 N.Y.S.2d 518;cf. People v. Torres, 252 A.D.2d 60, 65, 686 N.Y.S.2d 375;People v. King, 186 A.D.2d 683, 588 N.Y.S.2d 429;People v. Rosado, 123 A.D.2d 649, 506 N.Y.S.2d 913). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see Matter of Hasan C., 59 A.D.3d 617, 873 N.Y.S.2d 709;Matter of Tanasia Elanie E., 49 A.D.3d 642, 853 N.Y.S.2d 380;cf.CPL 470.15[5] ), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Daniel R., 51 A.D.3d 933, 933–934, 856 N.Y.S.2d 876;Matter of Victor I., 57 A.D.3d 779, 868 N.Y.S.2d 897;cf. People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828). Upon our review of the record, we are satisfied that the Family Court's fact-finding determination as to the acts which, if committed by an adult, would have constituted manslaughter in the second degree and assault in the second degree, was not against the weight of the evidence ( seeFamily Ct. Act § 342.2[2]; cf. People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The appellant's contention that the Family Court issued four orders of protection in violation of Family Court Act § 352.3(1) is unpreserved for appellate review, as he failed to raise this contention at the dispositional hearing ( see Matter of Nathaniel P., 58 A.D.3d 860, 873 N.Y.S.2d 118). However, we elect to review the orders as a matter of discretion in the interest of justice ( cf. People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13;People v. Goldberg, 16 A.D.3d 519, 791 N.Y.S.2d 172). As the presentment agency properly concedes on appeal, the Family Court was not authorized under Family Court Act § 352.3(1) to issue those two of the four orders of protection which were in favor of the witnesses who were not victims of the alleged offense, and those orders must be vacated. Moreover, as the Family Court was operating under the mistaken belief that it was required to issue orders of protection in favor of the two complainants who were involved in the underlying altercation with the appellant, those orders must also be vacated, and the matter must be remitted to the Family Court, Orange County, to determine whether good cause exists to issue such orders, and to permit the Family Court to exercise the discretion granted to it under Family Court Act § 352.3(1) ( see generally Matter of Butler v. Town of Ramapo, 242 A.D.2d 570, 572, 662 N.Y.S.2d 93;People v. Tomlinson, 162 A.D.2d 563, 559 N.Y.S.2d 165;People v. Gabai, 149 A.D.2d 431, 539 N.Y.S.2d 775).