Opinion
2013-10889 (Docket No. D-13563-13)
11-19-2014
In the Matter of JASHAUN A. (Anonymous), appellant.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and John A. Newbery of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Michael J. Pastor of counsel; Brian Thayer on the brief), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and John A. Newbery of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Michael J. Pastor of counsel; Brian Thayer on the brief), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Opinion In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Jashaun A. appeals from an order of disposition of the Family Court, Kings County (Ambrosio, J.), dated October 31, 2013, which, upon an order of fact-finding of the same court dated August 8, 2013, made upon his admission, finding that he committed an act which, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree, and after a dispositional hearing, adjudged him to be a juvenile delinquent and placed him with 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 order of fact-finding and the denial, after a hearing (Oshansky, J.), of that branch of the appellant's omnibus motion which was to suppress physical evidence.
ORDERED that the order of disposition is affirmed, without costs or disbursements.
In reviewing a hearing court's findings of fact, the credibility determinations of the trier of fact are ordinarily accorded great weight (see Matter of Tonay C., 119 A.D.3d 560, 987 N.Y.S.2d 893 ; Matter of Robert D., 69 A.D.3d 714, 716, 892 N.Y.S.2d 523 ). Although the Appellate Division has the power “ ‘to make new findings of fact’ ” (Matter of Tonay C., 119 A.D.3d at 561, 987 N.Y.S.2d 893, quoting People v. Lopez, 95 A.D.2d 241, 253, 465 N.Y.S.2d 998 ; see CPL 470.15 ), we decline to do so here. Contrary to the appellant's contention, the testimony of police officers at the suppression hearing that the appellant was observed at approximately 8:05 p.m. on May 15, 2013, while it was still light outside, walking towards them on a public sidewalk holding a sweatshirt in such a way that the butt of a gun was partially visible, was not so implausible as to be unworthy of belief. Moreover, the hearing testimony does not support the appellant's contention that the officers' testimony was a fabrication that was patently tailored to nullify constitutional objections (see People v. Brannon, 16 N.Y.3d 596, 602, 925 N.Y.S.2d 393, 949 N.E.2d 484 ; Matter of Tonay C., 119 A.D.3d at 561, 987 N.Y.S.2d 893 ; People v. Lewis, 117 A.D.3d 751, 752, 988 N.Y.S.2d 626 ; Matter of David R., 170 A.D.2d 453, 565 N.Y.S.2d 235 ; see generally People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). Thus, upon crediting the officers' testimony, the Family Court correctly concluded that the police had probable cause to arrest the appellant for committing an act which, if committed by an adult, would constitute the crime of criminal possession of a weapon in the second degree (see Penal Law § 265.03 ).
Accordingly, the Family Court properly denied that branch of the appellant's omnibus motion which was to suppress physical evidence.