Opinion
7960 7961
12-27-2018
IN RE DAVID W., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for presentment agency.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Rebecca L. Visgaitis of counsel), for presentment agency.
Acosta, P.J., Gische, Mazzarelli, Webber, Oing, JJ.
The court properly declined to draw a missing witness inference as to the victim. The presentment agency sufficiently established that the victim was unavailable (see People v. Savinon, 100 N.Y.2d 192, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003] ), and that the agency did not "merely go through the motions of asking [the] witness to testify," with the "ulterior goal of keeping the witness off the stand" ( id. at 200, 761 N.Y.S.2d 144, 791 N.E.2d 401 ). The victim's whereabouts were unknown by the time of the fact-finding hearing, and he could not be located despite diligent efforts conducted at that time (see People v. Henriquez, 147 A.D.3d 706, 48 N.Y.S.3d 142 [1st Dept. 2017], lv denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ). In any event, any error was harmless given the police officer's eyewitness testimony of the assault (see People v. Daisley, 115 A.D.3d 535, 981 N.Y.S.2d 728 [1st Dept. 2014] ).
The fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).