Opinion
2019–13623 Docket No. D–1391–19
07-14-2021
In the MATTER OF ERNEST S.C. (Anonymous), appellant.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and John A. Newbery of counsel), for appellant. Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Jane L. Gordon and Deborah E. Wassel of counsel), for respondent.
Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and John A. Newbery of counsel), for appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York, N.Y. (Jane L. Gordon and Deborah E. Wassel of counsel), for respondent.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appellant appeals from an order of disposition of the Family Court, Richmond County (Alison M. Hamanjian, J.), dated October 30, 2019. The order of disposition, upon an order of fact-finding of the same court dated August 7, 2019, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, petit larceny, criminal possession of stolen property in the fifth degree, and attempted assault in the third degree, adjudicated him a juvenile delinquent and placed him on probation for a period of 12 months.
ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of probation has expired; and it is further,
ORDERED that the order of disposition is modified, on the law, by 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 robbery in the third degree and petit larceny, and substituting therefor a provision dismissing those counts of the petition; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the order of fact-finding is modified accordingly.
The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months must be dismissed as academic, as the period of probation has expired (see Matter of Deandre Mc., 124 A.D.3d 786, 787, 2 N.Y.S.3d 182 ). However, since there may be collateral consequences resulting from the adjudication of delinquency, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent has not been rendered academic (see Family Ct Act § 783 ; Matter of Jahiem J., 155 A.D.3d 1037, 1038, 64 N.Y.S.3d 595 ; Matter of Deandre Mc., 124 A.D.3d at 787, 2 N.Y.S.3d 182 ).
"The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant's commission of all the elements of the charged crimes beyond a reasonable doubt" ( Matter of Danielle B., 94 A.D.3d 757, 758, 941 N.Y.S.2d 685 ; see Matter of Malik B., 151 A.D.3d 842, 843, 56 N.Y.S.3d 270 ).
Here, 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 the acts at issue (see Matter of Aaliyah R., 144 A.D.3d 923, 923, 42 N.Y.S.3d 185 ) and his larcenous intent (see Penal Law § 155.05[1] ; see e.g. People v. Lamont, 25 N.Y.3d 315, 319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 ). Contrary to the appellant's contentions, a particular surveillance video was properly authenticated at the fact-finding hearing (see People v. Costello, 128 A.D.3d 848, 848, 9 N.Y.S.3d 132 ).
Moreover, "in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the fact finder's opportunity to view the witnesses, hear the testimony, and observe demeanor" ( Matter of Malik B., 151 A.D.3d at 843, 56 N.Y.S.3d 270 ). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence (see Matter of Maximus G., 165 A.D.3d 660, 662, 85 N.Y.S.3d 111 ; Matter of Malik B., 151 A.D.3d at 843, 56 N.Y.S.3d 270 ).
However, the counts of the petition charging robbery in the third degree and petit larceny should have been dismissed as lesser included offenses, since the appellant was found to have committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree and grand larceny in the fourth degree (see CPL 1.20[37] ; 300.40[3][b]; Matter of Maximus G., 165 A.D.3d at 662, 85 N.Y.S.3d 111 ; Matter of Tonia B., 239 A.D.2d 572, 573, 658 N.Y.S.2d 91 ).
The appellant's remaining contention is without merit.
RIVERA, J.P., DUFFY, BRATHWAITE NELSON and WOOTEN, JJ., concur.