Opinion
2015-07016, Docket No. D-1074-15.
04-27-2016
In the Matter of TYRONE M. (Anonymous), appellant.
George E. Reed, Jr., White Plains, N.Y., for appellant. Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Linda M. Trentacoste of counsel), for respondent.
George E. Reed, Jr., White Plains, N.Y., for appellant.
Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco and Linda M. Trentacoste of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.
Opinion Appeal from an order of fact-finding and disposition of the Family Court, Westchester County (Mary Anne Scattaretico–Naber, J.), entered July 7, 2015. The order found that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of attempted incest in the third degree and attempted sexual abuse in the third degree, adjudicated him a juvenile delinquent, and placed him under the care and custody of the Westchester County Department of Social Services for a period of 12 months, with the recommendation that he be placed at Eagleton School, Great Barrington, Massachusetts, with credit for time served in detention. ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
For a juvenile delinquency petition, or a count thereof, to be sufficient on its face, “the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof” (Matter of Matthew W., 48 A.D.3d 587, 588, 852 N.Y.S.2d 223 ; see Family Ct. Act § 311.2[3] ; Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Shakeim C., 97 A.D.3d 675, 676, 948 N.Y.S.2d 360 ; Matter of Steven C., 93 A.D.3d 91, 94, 939 N.Y.S.2d 468 ). “Such allegations must be set forth in the petition and/or the supporting depositions” (Matter of Matthew W., 48 A.D.3d at 588, 852 N.Y.S.2d 223 ; see Family Ct. Act § 311.2[3] ; Matter of Jahron S., 79 N.Y.2d 632, 636, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). “The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count” (Matter of Matthew W., 48 A.D.3d at 588, 852 N.Y.S.2d 223 ; see Matter of Neftali D., 85 N.Y.2d at 635, 628 N.Y.S.2d 1, 651 N.E.2d 869 ). Here, contrary to the appellant's contention, the juvenile delinquency petition was facially sufficient. The alleged child victim's supporting deposition, which contained a recitation that false statements made therein were punishable as a misdemeanor, set forth allegations which, if true, were sufficient to establish the elements of the crimes of attempted incest in the third degree and attempted sexual abuse in the third degree and the appellant's commission thereof (see Matter of Lamont D., 247 A.D.2d 615, 616, 668 N.Y.S.2d 495 ; Matter of Kishana B., 243 A.D.2d 561, 662 N.Y.S.2d 839 ; Matter of Charlene D., 214 A.D.2d 561, 562, 625 N.Y.S.2d 243 ; Matter of Kerwin C., 207 A.D.2d 890, 891, 616 N.Y.S.2d 754 ). The fact that the child could not have been charged criminally or adjudicated a juvenile delinquent for making a false statement did not render the petition or his supporting deposition facially insufficient (see Matter of Nelson R., 90 N.Y.2d 359, 660 N.Y.S.2d 707, 683 N.E.2d 329 ; Matter of Jermaine G., 38 A.D.3d 105, 108, 828 N.Y.S.2d 160 ; Matter of Ernst B., 177 Misc.2d 22, 675 N.Y.S.2d 805 [Fam.Ct., Monroe County] ). Accordingly, the appellant is not entitled to dismissal of the petition pursuant to Family Court Act § 315.1.
Viewing the evidence 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 Dayshawn S., 122 A.D.3d 748, 749, 995 N.Y.S.2d 614 ), we find that there was legally sufficient evidence to establish that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted incest in the third degree and attempted sexual abuse in the third degree (see generally People v. Mahboubian, 74 N.Y.2d 174, 190, 544 N.Y.S.2d 769, 543 N.E.2d 34 ; People v. Wiley, 119 A.D.3d 821, 822, 989 N.Y.S.2d 324 ; Matter of Jonathan F., 72 A.D.3d 963, 898 N.Y.S.2d 516 ; Matter of Deshon A., 39 A.D.3d 338, 832 N.Y.S.2d 432 ; Matter of Raymond M., 13 A.D.3d 377, 378, 786 N.Y.S.2d 94 ; Matter of Christopher T., 287 A.D.2d 336, 336–337, 731 N.Y.S.2d 377 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Dayshawn S., 122 A.D.3d at 749, 995 N.Y.S.2d 614 ; Matter of Michale A.C., 73 A.D.3d 1042, 1043, 900 N.Y.S.2d 655 ; cf. CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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 J., 136 A.D.3d 915, 26 N.Y.S.3d 138 ; Matter of Hasan C., 59 A.D.3d 617, 617–618, 873 N.Y.S.2d 709 ; cf. People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record, we are satisfied that the Family Court's fact-finding determinations were not against the weight of the evidence (see Family 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 ). Specifically, contrary to the appellant's contention, the finding that he had the requisite intent for the acts charged was supported by the weight of the circumstantial evidence.
The appellant also challenges the Family Court's determination to place him in the custody of the Westchester County Department of Social Services. The Family Court has broad discretion in entering dispositional orders (see Matter of Mark G., 131 A.D.3d 1057, 17 N.Y.S.3d 148 ; Matter of Nysaiah L., 125 A.D.3d 777, 778, 3 N.Y.S.3d 403 ). In light of the nature of the appellant's conduct, the Department of Probation's recommendation, the recommendation found in one of the forensic mental health evaluation reports, the appellant's behavior while under the control of his mother, the continued presence of the victim in his household, and the appellant's school records, the Family Court properly found that the “least restrictive [dispositional] alternative” was the subject placement of the appellant in the custody of the Westchester County Department of Social Services for a period of 12 months (Family Ct. Act § 352.2[2][a] ; see Matter of Bruce B., 54 A.D.3d 1031, 1031–1032, 865 N.Y.S.2d 255 ; Matter of Gustan G., 52 A.D.3d 513, 514, 860 N.Y.S.2d 127 ; Matter of Donnell W., 36 A.D.3d 926, 828 N.Y.S.2d 558 ; Matter of Pedro A., 34 A.D.3d 461, 824 N.Y.S.2d 148 ). Even though a second forensic mental health evaluation report recommended that the appellant be placed on probation and receive community-based treatment, “ ‘[t]he Family Court is not bound to follow any recommendations submitted for its consideration’ and may make its own determination based upon the materials and evidence before it” (Matter of Jalen G., 104 A.D.3d 853, 854, 961 N.Y.S.2d 536, quoting Matter of Erika R., 55 A.D.3d 740, 741, 865 N.Y.S.2d 660 ). Accordingly, the Family Court properly balanced the appellant's needs with the need for the protection of the community.
The appellant's remaining contentions are without merit or do not require reversal.