Opinion
2014-06-18
In the Matter of RUSSELL F. (Anonymous), appellant.
Geanine Towers, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow of counsel; Rogan McCally on the brief) for respondent.
Geanine Towers, Brooklyn, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow of counsel; Rogan McCally on the brief) for respondent.
REINALDO E. RIVERA, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Russell F. appeals from (1) a fact-finding order of the Family Court, Kings County (Olshansky, J.), dated April 24, 2013, made after a fact-finding hearing, finding that he committed acts which, if committed by an adult, would have constituted the crimes of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree, and (2) an order of disposition of the same court dated July 19, 2013, which, upon the fact-finding order, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months. The appeal brings up for review the denial, after a hearing, of that branch of the appellant's omnibus motion which was to suppress identification testimony.
ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,
ORDERED that the order of disposition is affirmed, without costs or disbursements.
Contrary to the appellant's contentions, the showup procedure by which the complainant identified him was reasonable under the circumstances, having been conducted in close spatial and temporal proximity to the incident ( see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654;Matter of Dashawn R., 114 A.D.3d 686, 979 N.Y.S.2d 680;People v. Guitierres, 82 A.D.3d 1116, 1117, 919 N.Y.S.2d 211;Matter of Kassan D., 282 A.D.2d 747, 724 N.Y.S.2d 334). Furthermore, there was no evidence of undue suggestiveness ( see People v. Guy, 47 A.D.3d 643, 644, 850 N.Y.S.2d 476;Matter of Louis C., 6 A.D.3d 430, 431, 774 N.Y.S.2d 567;People v. Yearwood, 197 A.D.2d 554, 602 N.Y.S.2d 206). Accordingly, the Family Court properly denied suppression of the identification testimony.
Viewed 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), the evidence was legally sufficient to establish beyond a reasonable doubt the appellant's identity and that he committed acts which, if committed by an adult, would have constituted the crimes of burglary in the second degree, petit larceny, and criminal possession of stolen property in the fifth degree ( see People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014;Matter of Uriah M., 107 A.D.3d 997, 999, 966 N.Y.S.2d 874;Matter of Trayvond W., 71 A.D.3d 683, 894 N.Y.S.2d 914;People v. John, 51 A.D.3d 819, 819–820, 859 N.Y.S.2d 456). Moreover, upon the exercise of our factual review power, we are satisfied that the Family Court's determination was not against the weight of the evidence ( seeFamily 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).