In re West

• Decision Date: 03 February 2015
• Citation: 2 N.Y.S.3d 461,2015 N.Y. Slip Op. 00801,125 A.D.3d 410
• Parties: In re JONATHAN W., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 410

2 N.Y.S.3d 461

2015 N.Y. Slip Op. 00801

In re JONATHAN W., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

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

Feb. 3, 2015

Affirmed.

Bruce A. Young, New York, for appellant.

Zachary W. Carter, Corporation Counsel, New York (Deborah A. Brenner of counsel), for presentment agency.

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, JJ.

Order of disposition, Family Court, Bronx County (Gayle P. Roberts, J. and Monica Drinane, J. at fact-finding proceedings; Monica Drinane, J. at disposition), entered on or about December 20, 2013, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of robbery in the second degree and criminal possession of a stolen property in the fifth degree, and upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of robbery in the second degree, sexual abuse in the first and third degrees, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, and placed him on enhanced supervision probation for a period of 18 months, unanimously affirmed, without costs.

Appellant, who was adjudicated a juvenile delinquent based on separate hearings involving separate incidents, challenges the suppression and fact-finding rulings (Roberts, J.) relating to one of the incidents. We find these challenges unavailing.

The court properly denied appellant's suppression motion. The lineup was not unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]; see also People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162 [2002] ). Based on our review of a photograph of the lineup, we conclude that the differences in age and facial hair between appellant and the fillers were not so noticeable as to single appellant out. The victim's awareness that the police had a suspect in custody did not render the lineup unduly suggestive ( see e.g. People v. Ramos, 170 A.D.2d 186, 186, 565 N.Y.S.2d 87 [1st Dept.1991], lv. denied 78 N.Y.2d 1014, 575 N.Y.S.2d 822, 581 N.E.2d 1068 [1991] ).

The fact-finding determination challenged on appeal was supported by legally sufficient evidence. Appellant's sexual conduct toward the victim was clearly intended to obtain sexual gratification ( see e.g. Matter of Stephen F., 300 A.D.2d 52, 750 N.Y.S.2d 500 [1st Dept.2002] ), and his guilt of criminal possession of...