Opinion
2003-01720, 2003-05301.
Decided March 8, 2004.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeals are from (1) a fact-finding order of the Family Court, Dutchess County (Forman, J.), entered January 21, 2003, finding that he committed acts which, if committed by an adult, would have constituted the crimes of rape in the first degree (two counts) and sodomy in the first degree (three counts), and (2) an amended order of disposition of the same court entered April 21, 2003, which, upon the fact-finding order, inter alia, adjudged him to be a juvenile delinquent and placed him in the custody of the Commissioner of Social Services of the County of Dutchess for a period of up to 18 months.
Gary E. Eisenberg, Monroe, N.Y., for appellant.
Ian G. MacDonald, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel), for respondent.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the appeal from the order entered January 21, 2003, is dismissed, without costs or disbursements, as that order was superseded by the amended order of disposition; and it is further,
ORDERED that the amended order of disposition entered April 21, 2003, is affirmed, without costs or disbursements.
The appellant failed to preserve his argument with respect to the impropriety of adjournments of the fact-finding hearing because he did not move to dismiss the petition in the Family Court ( see Family Court Act § 340.1; Matter of Kovan Clearance D., 288 A.D.2d 219, 220; Matter of Naiquan T., 265 A.D.2d 331, 332). In any event, the appellant consented to the two adjournments, waiving the speedy fact-finding claim ( see Matter of Michael T., 305 A.D.2d 610, 611; Matter of Christopher Scott F., 264 A.D.2d 395). Any claimed delay in the commencement of the dispositional hearing ( see Family Court Act § 350.1) does not require dismissal of the petition under the circumstances presented ( see Matter of Jose R., 83 N.Y.2d 388; Matter of Andre M., 299 A.D.2d 967; Matter of Ango H., 286 A.D.2d 500, 501; Matter of Wayne H., 233 A.D.2d 941; Matter of Eddie M., 196 A.D.2d 25).
The appellant failed to preserve his contention regarding legal insufficiency of the evidence for appellate review ( cf. CPL 470.05; People v. Santos, 86 N.Y.2d 869, 870; People v. Gray, 86 N.Y.2d 10, 20-21). In any event, viewing the evidence in the light most favorable to the presentment agency, we find that it was legally sufficient to support the determination made in the fact-finding order ( cf. People v. Contes, 60 N.Y.2d 620, 621; see Matter of Michael T., supra). Moreover, resolution of issues of credibility, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses ( cf. People v. Gaimari, 176 N.Y. 84, 94; see Matter of Dennis G., 294 A.D.2d 501) . Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( cf. People v. Garafolo, 44 A.D.2d 86). Upon the exercise of our factual review power, we are satisfied that the findings of fact were not against the weight of the evidence ( cf. CPL 470.15).
S. MILLER, J.P., LUCIANO, ADAMS and COZIER, JJ., concur.