Summary
noting that if juvenile appellant had been an adult, he would have been guilty of a public lewdness offense for openly masturbating in the window of a private residence while uttering obscene comments
Summary of this case from Martinez v. Port Authority of New York New JerseyOpinion
June 22, 1987
Appeal from the Family Court, Suffolk County (Hurley, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
Although we believe that the Judge presiding at the hearing abused his discretion in sua sponte reopening the presentment agency's case after it had rested and after a motion had been made by the appellant to dismiss the petition for failure to make out a prima facie case, the error was harmless (cf., People v Yut Wai Tom, 53 N.Y.2d 44, 56-57; Matter of Sean C., 124 A.D.2d 583). The evidence presented prior to reopening was sufficient to support the conclusion that the appellant committed an act which, if committed by an adult, would have constituted the crime of public lewdness within the meaning of Penal Law § 245.00. Penal Law § 245.00 prohibits the intentional exposure of "the private or intimate parts" of the body "in a lewd manner" or the commission of "any other lewd act" either in a public place, or "in private premises under circumstances in which he may readily be observed from either a public place or from other private premises". Contrary to the appellant's interpretation of Penal Law § 245.00, we do not read the statute as being limited to acts of exposure (see, People v Darryl M., 123 Misc.2d 723, 725). Thus, the complainant's testimony that the appellant was masturbating and making obscene remarks to her daughter in front of a window of his residence in full public view was sufficient to demonstrate conduct proscribed by the phrase "any other lewd act" in the context of Penal Law § 245.00 (People v Darryl M., supra, at 726).
We further hold that, under the facts of this case, the hearing court did not err in drawing an unfavorable inference against the appellant for his failure to call his brother or sister-in-law as witnesses to support his alibi inasmuch as these witnesses "would be favorable to him and hostile to the prosecution and the testimony would not be trivial or cumulative" (People v Wilson, 64 N.Y.2d 634, 636, citing People v Rodriquez, 38 N.Y.2d 95; cf., People v Wynn, 121 A.D.2d 665; People v Williams, 112 A.D.2d 177, 178).
Finally, we perceive no reason to disturb the hearing court's findings. The appellant's arguments center on issues of credibility which were primarily for the hearing court to resolve (see, People v Gruttola, 43 N.Y.2d 116; Matter of Dennis N., 110 A.D.2d 703). Upon the exercise of our factual review power, we are satisfied that the appellant's guilt was established beyond a reasonable doubt, and the determination of the Family Court was not against the weight of the evidence. Thompson, J.P., Brown, Niehoff and Spatt, JJ., concur.