Opinion
2011-11-15
In the Matter of MERCEDES K. (Anonymous), appellant.
Steven Banks, New York, N.Y. (Tamara Steckler and Marcia Egger of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L. Gordon of counsel), for respondent.
Steven Banks, New York, N.Y. (Tamara Steckler and Marcia Egger of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L. Gordon of counsel), for respondent.
ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Mercedes K. appeals from (1) an order of disposition of the Family Court, Kings County (Elkins, J.), dated October 4, 2010, which, upon a fact-finding order of the same court dated June 18, 2010, made after a hearing, inter alia, finding that she committed acts which, if committed by an adult, would have constituted the crime of attempted abortion in the second degree, adjudged her to be a juvenile delinquent and placed her on probation for a period of 12 months, and (2) an order of disposition of the same court dated December 9, 2010, which, upon the court's own motion pursuant to Family Court Act § 355.1(1), in effect, vacated the prior order of disposition dated October 4, 2010, and, upon the fact-finding order, inter alia, finding that she committed acts which, if committed by an adult, would have constituted the crime of attempted abortion in the second degree, adjudged her to be a juvenile delinquent and placed her in the custody of the Administration for Children's Services through October 4, 2011. The appeal from the order of disposition dated December 9, 2010, brings up for review the fact-finding order dated June 18, 2010.
ORDERED that the appeal from the order of disposition dated October 4, 2010, is dismissed, without costs or disbursements, as that order was superseded by the order of disposition dated December 9, 2010; and it is further,
ORDERED that the appeal from so much of the order of disposition dated December 9, 2010, as placed the appellant in the custody of the Administration for Children's Services through October 4, 2011, is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition dated December 9, 2010, is affirmed insofar as reviewed, without costs or disbursements.
The appeal from so much of the order of disposition dated December 9, 2010, as placed the appellant with the Administration for Children's Services through October 4, 2011, has been rendered academic, as the period of placement has expired ( see Matter of David H., 88 A.D.3d 710, 931 N.Y.S.2d 508 [2d Dept. 2011]; Matter of Vanna W., 45 A.D.3d 855, 856, 846 N.Y.S.2d 354). However, because there may be collateral consequences resulting from the adjudication of delinquency, the appeal from so much of the order of disposition dated December 9, 2010, as adjudicated the appellant a juvenile delinquent, and which brings up for review the fact-finding order, has not been rendered academic ( see Family Ct. Act § 783; Matter of Dorothy D., 49 N.Y.2d 212, 424 N.Y.S.2d 890, 400 N.E.2d 1342).
The appellant contends that attempted abortion in the second degree is a nonexistent crime and, therefore “there could not be evidence to support conviction beyond a reasonable doubt” ( People v. Martinez, 81 N.Y.2d 810, 812, 595 N.Y.S.2d 376, 611 N.E.2d 277). Such a contention need not be preserved for appellate review ( see People v. Stevenson, 71 A.D.3d 796, 797, 895 N.Y.S.2d 750). However, contrary to the appellant's contention, attempted abortion in the second degree ( see Penal Law §§ 110.00, 125.40) is a legally cognizable crime. The crime of abortion in the second degree ( see Penal Law § 125.40) imposes criminal liability for engaging in specified conduct and, therefore, attempted abortion in the second degree is legally cognizable, “ ‘since one can attempt to engage in conduct’ ” ( People v. Aponte, 16 N.Y.3d 106, 109, 918 N.Y.S.2d 766, 944 N.E.2d 204, quoting People v. Prescott, 95 N.Y.2d 655, 659, 722 N.Y.S.2d 778, 745 N.E.2d 1000).
The appellant's challenge to the legal sufficiency of the evidence with regard to the finding that the appellant committed acts which, if committed by an adult, would have constituted the crime of attempted abortion in the second degree, is unpreserved for appellate review ( see Matter of Charles S., 41 A.D.3d 484, 485, 838 N.Y.S.2d 136; Matter of James G., 309 A.D.2d 935, 936, 766 N.Y.S.2d 100; 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; Matter of Summer D., 67 A.D.3d 1008, 1009, 890 N.Y.S.2d 562; Matter of Davonte B., 44 A.D.3d 763, 764, 844 N.Y.S.2d 68), 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 crime of attempted abortion in the second degree ( see Family Ct. Act § 342.2[2] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see Matter of Steven L., 86 A.D.3d 613, 614, 926 N.Y.S.2d 911, lv. denied 17 N.Y.3d 714, 2011 N.Y. Slip Op. 87121, 2011 WL 4977276 [2011]; cf. CPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Daniel R., 51 A.D.3d 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 Family Court's fact-finding determinations were not against the weight of the evidence ( cf. People v. Romero, 7 N.Y.3d 633, 644–645, 826 N.Y.S.2d 163, 859 N.E.2d 902).