In the Matter of Brandon W.
| Decision Date | 25 April 2006 |
| Docket Number | 2004-04646. |
| Citation | 28 A.D.3d 783,2006 NY Slip Op 03100,814 N.Y.S.2d 675 |
| Parties | In the Matter of BRANDON W., a Person Alleged to be a Juvenile Delinquent, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order of disposition is modified, on the law and as a matter of discretion in the interest of justice, by (1) deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crimes of sodomy in the first degree (six counts) and sexual abuse in the first degree (two counts), and substituting therefor a provision dismissing the first, third, fourth, sixth, eighth, tenth, eleventh, and thirteenth counts of the petition, renumbered in the fact-finding order as the first, third, fifth, seventh, ninth, eleventh, thirteenth, and fourteenth counts and (2) deleting the provision thereof requiring the appellant, as a condition of probation, to submit to a polygraph examination; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
The appellant's contention that the evidence was legally insufficient to establish the six counts of sodomy in the first degree by forcible compulsion is unpreserved for appellate review (see CPL 470.05 [2]; People v. Gray, 86 NY2d 10 [1995]). Nevertheless, in the exercise of our interest of justice jurisdiction, we vacate the findings that the appellant committed acts which, if committed by an adult, would have constituted six counts of the crimes of sodomy in the first degree by forcible compulsion. In this case, the presentment agency failed to adduce legally sufficient evidence that the appellant forcibly compelled the victim to perform or participate in...
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