Opinion
2011-12-6
In the Matter of WILLIAM A. (Anonymous), JR., appellant.
Paul Ira Weinberger, Poughkeepsie, N.Y., for appellant. James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel), for respondent.
Paul Ira Weinberger, Poughkeepsie, N.Y., for appellant. James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, William A., Jr., appeals from (1) a fact-finding order of the Family Court, Dutchess County (Forman, J.), dated June 30, 2010, which, after a hearing, found that he committed acts which, if committed by an adult, would have constituted the crimes of sexual abuse in the first degree, sexual abuse in the second degree, sexual abuse in the third degree, and course of sexual conduct in the second degree, and (2) an order of disposition of the same court dated October 19, 2010, which, upon the fact-finding order and after a dispositional hearing, adjudged him to be a juvenile delinquent and placed him on probation for a period of 24 months.
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that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,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 modified, on the law, by deleting the provisions 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 sexual abuse in the second degree and sexual abuse in the third degree, and substituting therefor a provision dismissing those counts of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
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 opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Steven L., 86 A.D.3d at 614, 926 N.Y.S.2d 911; 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 determination with respect to the counts of sexual abuse in the first degree and course of sexual conduct in the second degree was not against the weight of the evidence ( see Family 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).
As the presentment agency correctly concedes, the counts of sexual abuse in the second degree and sexual abuse in the third degree should have been dismissed as lesser-included offenses of sexual abuse in the first degree ( see CPL 1.20[37], 300.40[3][b]; Matter of Kenyetta F., 49 A.D.3d 540, 541, 855 N.Y.S.2d 170; Matter of Jaleel H., 36 A.D.3d 808, 809–810, 828 N.Y.S.2d 500; Matter of Edward S., 80 A.D.2d 585, 586, 435 N.Y.S.2d 771).