In re Jarell W.

• Decision Date: 23 March 2016
• Citation: 137 A.D.3d 1154,26 N.Y.S.3d 877 (Mem)
• Parties: In the Matter of JARELL W. (Anonymous), appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1154

26 N.Y.S.3d 877 (Mem)

In the Matter of JARELL W. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 23, 2016.

Peter S. Smith, Northport, N.Y., for appellant.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (Renee G. Pardo of counsel), for respondent.

Appeal from an order of disposition of the Family Court, Suffolk County (David Freundlich, J.), dated October 20, 2014. The order adjudicated Jarell W. a juvenile delinquent, upon a fact-finding determination, made after a hearing, that he committed an act which, if committed by an adult, would constitute the crime of robbery in the second degree, and placed him on probation for a period of 24 months. The appeal brings up for review the denial, after a hearing, of the motion of Jarell W. to suppress identification evidence.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

In the absence of any evidence demonstrating that the police-arranged photo array identification evidence was the product of unduly suggestive police procedure (see generally United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ; People v. Marshall, 26 N.Y.3d 495, 25 N.Y.S.3d 58, 45 N.E.3d 954 ; People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ), we decline to disturb the Family Court's denial of the appellant's motion to suppress the photo array identification evidence. "[A]bsent a showing of suggestiveness the [presentment agency] bear[s] no burden to come forward with evidence of an independent source" for a witness's in-court identification of a respondent (People v. Marshall, 26 N.Y.3d at 506, 25 N.Y.S.3d 58, 45 N.E.3d 954 ; see People v. Burts, 78 N.Y.2d 20, 24, 571 N.Y.S.2d 418, 574 N.E.2d 1024 ; People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Brown, 47 A.D.3d 826, 849 N.Y.S.2d 639 ).

The appellant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (cf. CPL 470.05[2] ). In any event, 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 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the appellant's identity as the person who committed acts, which, if committed by an adult, would constitute the crime of robbery in the second degree (see Matter of Juan J., 81 N.Y.2d 739, 740–741, 593 N.Y.S.2d 768, 609 N.E.2d 121 ; Matter of Malik S.R., 73 A.D.3d 1182, 901 N.Y.S.2d 524 ; Matter of Jonathan V., 43 A.D.3d 470, 840 N.Y.S.2d 537 ; Matter of Louis C., 6 A.D.3d 430, 774 N.Y.S.2d 567 ; cf. Penal Law §§ 20.00, 160.10 [1] ). Moreover, upon our independent review of the record, we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence (see Matter of Shamik M., 117 A.D.3d 1056, 986 N.Y.S.2d 566 ; Matter of Leonce K.O., 115 A.D.3d 955, 982 N.Y.S.2d 571 ; Matter of Chakelton M., 111 A.D.3d 732, 733, 975 N.Y.S.2d 95 ; Matter of Danielle...