In re Kemar G.
| Decision Date | 20 April 2010 |
| Citation | 72 A.D.3d 965,898 N.Y.S.2d 518 |
| Parties | In the Matter of KEMAR G. (Anonymous), appellant. |
| Court | New York Supreme Court — Appellate Division |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Suzanne K. Colt of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Bogacz,J.), dated September 10, 2008, which, after a hearing, and upon a fact-finding order of the same court dated June 2, 2008, finding that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of rape in the first degree, criminal sexual act in the first degree, and sexual abuse in the first degree, adjudged him to be a juvenile delinquent, and, upon his consent, placed him on probation for a period of 18 months. The appeal brings up for review the fact-finding order dated June 2, 2008.
ORDERED that the appeal from so much of the order of disposition as, upon the appellant's consent, placed the appellant on probation for a period of 18 months is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
Contrary to the appellant's contention, the order of removal to the Family Court, which specified that removal was pursuant to CPL article 725, did not lack the specificity required by Family Court Act § 311.1(3) ( see Family Ct. Act § 311.1[7]; see generally Matter of Michael M., 3 N.Y.3d 441, 445, 788 N.Y.S.2d 299, 821 N.E.2d 537). Likewise, although the Family Court did not specify under which subsections of the statutes the presentment agency had proved the appellant's delinquency, that failure did not deprive him of the right to effective appellate review ( see Penal Law §§ 130.35[1], [3], 130.50[1], [3], 130.65[1], [3] ).
The appellant's challenge to the legal sufficiency of the evidence is not preserved for appellate review ( see Matter of Melissa N., 62 A.D.3d 884, 878 N.Y.S.2d 783; Matter of Charles S., 41 A.D.3d 484, 485, 838 N.Y.S.2d 136). In any event, viewing the evidence at the fact-finding hearing 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, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of rape in the first degree, criminal sexual assault in the first degree, and sexual act in the first degree ( cf. People v. Patterelli, 68 A.D.3d 1151, 1152-1153, 889 N.Y.S.2d 748; People v. Scott, 61 A.D.3d 1348, 1349, 877 N.Y.S.2d 536; People v. Greene, 13 A.D.3d 991, 992, 787 N.Y.S.2d 466; Matter of Dakota EE, 209 A.D.2d 782, 783, 618 N.Y.S.2d 133).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see Matter of Hasan C., 59 A.D.3d 617, 873 N.Y.S.2d 709; cf. CPL 470.15[5]; 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 fact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Daniel R., 51 A.D.3d 933, 933-934, 856 N.Y.S.2d 876; cf. People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; 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 findings of fact 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).
The appellant contends that the Family Court improperly excluded certain handwriting evidence. While the Family Court...
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