Opinion
2014-10-3
In the Matter of SHANNON F., Respondent–Appellant. v. ONONDAGA COUNTY ATTORNEY, Petitioner–Respondent.
Susan B. Marris, Attorney for the Child, Manlius, for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Polly E. Johnson of Counsel), for Petitioner–Respondent.
Susan B. Marris, Attorney for the Child, Manlius, for Respondent–Appellant. Gordon J. Cuffy, County Attorney, Syracuse (Polly E. Johnson of Counsel), for Petitioner–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
Respondent appeals from an order of disposition adjudicating him a juvenile delinquent based on the finding that he had committed acts that, if committed by an adult, would constitute the crimes of forcible touching (Penal Law § 130.52) and endangering the welfare of a child (§ 260.10). Even assuming, arguendo, that respondent preserved for our review his contention that the evidence is legally insufficient to establish that he committed those acts by arguing that the victim's testimony was inconsistent with that of the eyewitness, we reject that contention. Viewing the evidence in the light most favorable to the presentment agency, we conclude that the evidence is legally sufficient to establish that respondent committed acts that, if he were an adult, would constitute the crimes of forcible touching ( see People v. Bartlett, 89 A.D.3d 1453, 1454, 933 N.Y.S.2d 145, lv. denied18 N.Y.3d 881, 939 N.Y.S.2d 751, 963 N.E.2d 128) and endangering the welfare of a child ( see generally People v. Sanderson, 68 A.D.3d 1716, 1717, 891 N.Y.S.2d 571, lv. denied14 N.Y.3d 844, 901 N.Y.S.2d 151, 927 N.E.2d 572; People v. Russell, 50 A.D.3d 1569, 1569, 857 N.Y.S.2d 398, lv. denied10 N.Y.3d 939, 862 N.Y.S.2d 346, 892 N.E.2d 412). Moreover, upon the exercise of our independent power of factual review, we are satisfied that Family Court properly credited the testimony of the two principal witnesses and that its findings are not against the weight of the evidence ( see generally Matter of Anthony S., 305 A.D.2d 689, 690, 759 N.Y.S.2d 891). “[R]esolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the finder of fact, which saw and heard the witnesses” (Matter of Stephen C., 28 A.D.3d 656, 656, 813 N.Y.S.2d 226; see Matter of Kayla C. [Appeal No. 1], 35 A.D.3d 1187, 1187, 826 N.Y.S.2d 549).
Respondent failed to preserve for our review his contention that the court's actions, including, inter alia, its extensive participation in the questioning of witnesses, deprived him of a fair trial ( see People v. Charleston, 56 N.Y.2d 886, 887–888, 453 N.Y.S.2d 399, 438 N.E.2d 1114; Matter of Aron B., 46 A.D.3d 1431, 1431, 847 N.Y.S.2d 498). In any event, that contention is without merit ( cf. People v. Yut Wai Tom, 53 N.Y.2d 44, 57–58, 439 N.Y.S.2d 896, 422 N.E.2d 556). Respondent also failed to preserve for our review his contention that he is entitled to a new hearing or dismissal of the petition because the appearance ticket did not conform to Family Court Act § 307.1(1). We decline to exercise our power to review that contention in the interest of justice ( see Matter of George N.B., 57 A.D.3d 1456, 1456–1457, 869 N.Y.S.2d 819, lv. denied12 N.Y.3d 706, 879 N.Y.S.2d 53, 906 N.E.2d 1087).
We reject the contention of respondent that he was denied effective assistance of counsel. “[T]he record establishes that, viewed in the totality of the proceedings, [respondent] received meaningful representation” (Matter of Jeffrey V., 82 N.Y.2d 121, 126, 603 N.Y.S.2d 800, 623 N.E.2d 1150; see George N.B., 57 A.D.3d at 1457, 869 N.Y.S.2d 819).
We reject the further contention of respondent that the court failed to consider the least restrictive available alternative in placing him on probation ( seeFamily Ct. Act § 352.2[2][a] ). “The court has broad discretion in determining the appropriate disposition in juvenile delinquency cases” (Matter of Richard W., 13 A.D.3d 1063, 1064, 786 N.Y.S.2d 876). Contrary to respondent's contention, “the record establishes that the disposition ordered by the court is ‘the least restrictive available alternative ... which is consistent with the needs and best interests of the respondent and the need for protection of the community’ ” (Matter of Brendon H., 43 A.D.3d 1283, 1284, 841 N.Y.S.2d 909, quoting § 352.2[2][a] ).
We have considered respondent's remaining contentions, and we conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.