Opinion
2014-11-12
In the Matter of KOBE S. (Anonymous), appellant.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Edward F.X. Hart of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Edward F.X. Hart of counsel), for respondent.
THOMAS A. DICKERSON, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Kobe S. appeals from an order of disposition of the Family Court, Kings County (Olshansky, J.), dated September 16, 2013, which, upon a fact-finding order of the same court dated June 17, 2013, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree, attempted grand larceny in the fourth degree, and assault 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 17, 2013.
ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree, and substituting therefor a provision adjudicating the appellant a juvenile delinquent based upon a finding that he committed an act which, if committed by an adult, would have constituted the crime of attempted assault in the third degree; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the fact-finding order is modified accordingly.
The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months has been rendered academic, as the period of placement has expired ( see Matter of Justin D., 114 A.D.3d 941, 942, 981 N.Y.S.2d 147). However, because there may be collateral consequences resulting from the adjudication of delinquency, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent, which brings up for review the fact-finding order, has not been rendered academic ( seeFamily Ct. Act § 783; Matter of Justin D., 114 A.D.3d at 942, 981 N.Y.S.2d 147).
Viewing the evidence in the light most favorable to the presentment agency ( see Matter of Charles S., 41 A.D.3d 484, 485, 838 N.Y.S.2d 136), we find that it was legally sufficient to support the finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree and attempted grand larceny in the fourth degree. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( cf.CPL 470.15[5]; see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor ( 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 as to those branches of the petition were not against the weight of the evidence ( seeFamily Ct. Act § 342.2[2]; Matter of Darnell C., 66 A.D.3d 771, 887 N.Y.S.2d 211; Matter of Victor I., 57 A.D.3d 779, 868 N.Y.S.2d 897; see also Matter of Robert A., 57 A.D.3d 770, 870 N.Y.S.2d 392).
As correctly conceded by the presentment agency, and as the Family Court stated when rendering its oral finding of fact, the evidence was legally insufficient to establish that the victim sustained physical injuries which would support a finding that the acts proved would, if committed by an adult, have constituted the offense of assault in the third degree ( seePenal Law §§ 10.00[9]; 120.00[1]; see also Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358). However, the acts proved would, if committed by an adult, have constituted the lesser-included offense of attempted assault in the third degree ( seePenal Law §§ 110.00, 120.00 [1] ). We therefore modify the order of disposition and fact-finding order accordingly ( see Matter of Shawn D.R.-S., 94 A.D.3d 1541, 1541–1542, 943 N.Y.S.2d 706; Matter of John F., 12 A.D.3d 509, 510, 784 N.Y.S.2d 607).