Opinion
2013-03-27
In the Matter of GEORGE R. (Anonymous), appellant.
Susan Argento Ferlauto, Thornwood, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Allan Y. Drian of counsel), for respondent.
Susan Argento Ferlauto, Thornwood, N.Y., for appellant. David L. Darwin, County Attorney, Goshen, N.Y. (Allan Y. Drian of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, George R. appeals from (1) a fact-finding order of the Family Court, Orange County (Kiedaisch, J.), dated September 12, 2011, made after a hearing, finding that he committed acts which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree, and (2) an order of disposition of the same court dated December 23, 2011, which, upon the fact-finding order and after a dispositional hearing, adjudged him to be a juvenile delinquent and placed him on probation for a period of two years under stated terms and conditions, including directing him to undergo sex offender-specific therapy.
ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the order of disposition is affirmed, without costs or disbursements.
The appellant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see Matter of Danasia Mc., 94 A.D.3d 1122, 1123, 943 N.Y.S.2d 549;Matter of Kalexis R., 79 A.D.3d 755, 756, 913 N.Y.S.2d 922;Matter of Anthony R., 43 A.D.3d 939, 939–940, 841 N.Y.S.2d 642;cf.CPL 470.05[2] ). In any event, viewing the evidence 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 Kemar G., 72 A.D.3d 965, 898 N.Y.S.2d 518;Matter of Summer D., 67 A.D.3d 1008, 1009, 890 N.Y.S.2d 562), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellantcommitted acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree ( seePenal Law § 130.65[1]; see generally People v. Jessup, 90 A.D.3d 782, 783–784, 934 N.Y.S.2d 225). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;cf. CPL 470.15[5] ), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Clarissa S., 83 A.D.3d 1083, 1084, 921 N.Y.S.2d 540;cf. People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determinations were not against the weight of the evidence ( seeFamily Ct. Act § 342.2[2]; Matter of Charles S., 41 A.D.3d 484, 486, 838 N.Y.S.2d 136).
The Family Court has broad discretion in entering dispositional orders ( see Matter of Antoine H., 81 A.D.3d 646, 915 N.Y.S.2d 869;Matter of Gustav D., 79 A.D.3d 868, 869, 912 N.Y.S.2d 424;Matter of Abel R., 77 A.D.3d 758, 908 N.Y.S.2d 601). “That discretion includes the authority to impose conditions of probation that are reasonably related to rehabilitation” (Matter of Ashley D., 55 A.D.3d 605, 606, 866 N.Y.S.2d 222;seeFamily Ct. Act § 353.2[2][h]; cf.Penal Law § 65.10[2], [5]; People v. Letterlough, 86 N.Y.2d 259, 263–264, 631 N.Y.S.2d 105, 655 N.E.2d 146). Here, the disposition was appropriate in light of, inter alia, the seriousness of the incident that led to the appellant's adjudication as a juvenile delinquent, as well as the recommendations made in the probation report and the forensic mental health evaluation report ( see Matter of Gustav D., 79 A.D.3d at 869, 912 N.Y.S.2d 424;Matter of Eunique B., 73 A.D.3d 764, 899 N.Y.S.2d 852;Matter of Jonathan F., 72 A.D.3d 963, 964, 898 N.Y.S.2d 516;Matter of Javed K., 57 A.D.3d 899, 900, 870 N.Y.S.2d 412;Matter of Julissa R., 30 A.D.3d 526, 528, 817 N.Y.S.2d 116).
Furthermore, the failure of the appellant's counsel to object to the admission of the forensic mental health evaluation insofar as it relied on the results of the Abel Assessment for Sexual Interest (hereinafter the Abel Assessment) did not constitute ineffective assistance of counsel. The forensic mental health evaluator relied on the Abel Assessment only with respect to his finding that it provided evidence that the appellant had been “deceitful and dishonest in his responses.” The evaluator determined that this finding was corroborated by the appellant's Social Desirability Score, the reliability of which the appellant did not contest before the Family Court and does not contest now on appeal. Since the finding of the forensic evaluator based upon the Abel Assessment was corroborated, counsel was not ineffective for failing to challenge the admissibility of the results of the Abel Assessment, irrespective of the merits of this particular assessment tool ( see generally People v. Yagudayev, 91 A.D.3d 888, 890, 937 N.Y.S.2d 279). Contrary to the appellant's contention, the forensic mental health evaluation was properly admitted into evidence and considered by the Family Court for the purpose of making its dispositional order ( see Matter of Eunique B., 73 A.D.3d at 764, 899 N.Y.S.2d 852;Matter of Julissa R., 30 A.D.3d at 528, 817 N.Y.S.2d 116;cf. State v. Victor O., 301 Conn. 163, 175–176, 20 A.3d 669, 679,cert. denied ––– U.S. ––––, 132 S.Ct. 583, 181 L.Ed.2d 429).