| Matter of Anthony E. |
| 2011 NY Slip Op 02508 [82 AD3d 1544] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anthony E., a Person Alleged to be a JuvenileDelinquent, Appellant. Jonathan C. Wool, as Franklin County Assistant County Attorney,Respondent. |
—[*1] Jonathan J. Miller, County Attorney, Malone (Jonathan C. Wool of counsel), forrespondent.
Spain, J.P. Appeals from two orders of the Family Court of Franklin County (Main, Jr., J.),entered January 13, 2010 and May 14, 2010, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.
In September 2009, respondent (born in 1994) was walking after school in a village inFranklin County with several high school friends when they encountered a group of three middleschool students, one of whom—the victim herein (born in 1998)—made an obscenegesture at respondent's group. After an exchange of words, respondent and another member of hisgroup pursued the victim, who ran away and entered a dead end alley, and respondent and hisfriend followed. Respondent and the victim each picked up sticks of wood from a pile ofconstruction debris and, according to respondent, when he approached, the victim swung hisstick and hit respondent on his torso without causing any harm. Respondent then swung his stickat the victim hitting him on the side of the neck near his left shoulder leaving what recordphotographs show to be a five-inch-long and 1½-to-2-inch-wide linear abrasion, alsodescribed by an emergency room doctor as a contusion. Respondent also admitted to thenpunching the victim in the face at [*2]least twice—drawingblood—until the victim cried "stop," at which time respondent and his friend left the scene.
Respondent was charged as a juvenile delinquent in a petition alleging acts which, ifcommitted by an adult, would constitute two counts of the crime of assault in the second degree,under Penal Law § 120.05 (1) (causing serious physical injury) and § 120.05 (2)(causing injury by means of a dangerous instrument). At the conclusion of the fact-findinghearing, Family Court granted respondent's motion to dismiss the first allegation based oninadequate proof of physical injury, but found sufficient proof to determine that respondentcommitted an act of attempted assault in the second degree (see Penal Law§§ 110.00, 120.05 [2]).
Respondent was continued in the custody of his mother who, before the dispositionalhearing, took him to Florida causing warrants to be issued for their arrest. Eventually, respondentreturned to Franklin County, was placed in temporary predispositional detention and, after adispositional hearing, was placed with the Franklin County Department of Social Services(hereinafter FCDSS) for a period of 12 months. Respondent now appeals from both thefact-finding and dispositional orders.[FN*]
Initially, respondent asserts that Family Court improperly denied his request to hold aWade hearing but cites no evidence of a police-initiated identification. Although hesuggests that a police officer used a school yearbook to help two witnesses identify him, therecord reflects that no identification came from that process. Accordingly, this argument iswithout merit (see People v Gissendanner, 48 NY2d 543, 552 [1979]).
Next, respondent argues that Family Court's determination is not supported by legallysufficient evidence and it is against the weight of the evidence, primarily on the premise that hewas justified in striking the victim. On the record before us, there exists a "valid line of reasoningand permissible inferences" (People v Bleakley, 69 NY2d 490, 495 [1987]) that allowedthe court to find beyond a reasonable doubt that, as the initial aggressor, respondent was notjustified in his actions (see Penal Law § 35.15 [1] [b]; People v Carter, 74 AD3d 1375,1378 [2010], lv denied 15 NY3d 772 [2010]). Even before the victim picked up a stick,respondent and his friend were pursuing him. While they denied this, claiming that they weremerely walking towards the victim to talk to him, the record supports the conclusion that theychased and cornered the victim.
While a valid line of reasoning exists that allowed Family Court to reject a justificationdefense, a different finding by the court would not have been unreasonable and, therefore, thisCourt must weigh the evidence to determine if the determination was against the weight of the[*3]evidence (see People v Bleakley, 69 NY2d at 495; see also People v Romero, 7 NY3d633, 643-644 [2006]). We find no reason to disturb the court's assessment of the credibilityof the witnesses and their conflicting accounts (see Matter of Clifton NN., 64 AD3d 903, 905 [2009]; People v Brabant, 61 AD3d 1014,1016 [2009], lv denied 12 NY3d 851 [2009]), and find that its determination wassupported by the weight of the credible evidence. Additionally, based on the described size of thepiece of wood used by respondent to strike the victim, the location and size of the abrasion andthe obvious force and manner in which it was used, the record amply supports the court'sconclusion that respondent's stick constituted a dangerous instrument (see People vFlowers, 178 AD2d 682 [1991], lv denied 79 NY2d 947 [1992]).
Next, we reject respondent's assertion that a number of errors made by his counsel deprivedhim of meaningful representation (seePeople v Caban, 5 NY3d 143, 152 [2005]; Matter of Jeffrey QQ., 37 AD3d 986, 987 [2007]). The record, as awhole, reflects that respondent received meaningful representation by both his predispositionaland dispositional attorneys. His initial counsel engaged in motion practice, presented witnesses,effectively cross-examined witnesses and was successful in convincing Family Court that therewas no injury sufficient to support the assault allegations, and respondent suffered no actualprejudice from any of his claimed deficiencies (see Matter of Jonathan LL., 294 AD2d752, 753 [2002]). Further, the consent by respondent's dispositional counsel to the court'sconsideration of the dispositional reports does not support a finding that respondent was deniedmeaningful representation. We will not second-guess the efforts of counsel "with the clarity ofhindsight to determine how the defense might have been more effective" (People vBenevento, 91 NY2d 708, 712 [1998]; see Matter of Jeffrey QQ., 37 AD3d at 987).
We next reject respondent's contention that Family Court improperly placed him in the careof FCDSS, allegedly ignoring other available, less restrictive options. Family Ct Act §352.2 (2) (a) "requires that the court order the least restrictive available alternative which isconsistent with the needs and best interests of [the] respondent and the need for protection of thecommunity" (Matter of Sean U., 9AD3d 562, 563 [2004]). This does not, however, require the court to utilize without successall less restrictive alternatives before the respondent may be placed in the care of an authorizedagency (see id.; Matter of Zachary A., 307 AD2d 464, 465 [2003]). Here, in lightof respondent's failure to follow the conditions of his initial release on interim probation by,among other things, leaving the jurisdiction pending the dispositional hearing, as well as hisfailure to cooperate in his subsequent predispositional detention placement with FCDSS, theclear lack of appropriate parental supervision and his present need for structure in his life, wecannot say that it was an abuse of discretion to place him with FCDSS for one year.
We do agree, however, with respondent that since he was in detention prior to and pendingdisposition, Family Ct Act § 353.3 (5) requires that "the initial period of placement. . . shall be credited with and diminished by the amount of time spent by therespondent in detention prior to the commencement of the placement." If a court chooses not toapply this credit, it must make a finding that such a credit would not "serve the needs and bestinterests of the respondent or the need for protection of the community" (Family Ct Act §353.3 [5]; see Matter of Victor M., 243 AD2d 309 [1997]; see also Matter of WayneS., 193 AD2d 371, 372 [1993]). Accordingly, given the absence of such a finding,respondent should be credited with 43 days against his year in placement.
We have considered respondent's remaining contentions and find them unavailing.[*4]
Stein, McCarthy, Garry and Egan Jr., JJ., concur. Orderedthat the appeal from the order entered January 13, 2010 is dismissed, without costs. Ordered thatthe order entered May 14, 2010 is modified, on the law, without costs, by crediting respondentfor the 43 days served in predispositional detention, and, as so modified, affirmed.
Footnote *: Because no appeal as of rightmay be taken from a nondispositional order in a Family Ct Act article 3 proceeding (seeFamily Ct Act § 1112 [a]; Matterof Brittenie K., 50 AD3d 1203, 1204 n 1 [2008]), respondent's appeal from the January2010 fact-finding order must be dismissed. Respondent's appeal from the May 2010 dispositionalorder brings up for review all aspects of Family Court's fact-finding and dispositionaldeterminations (see CPLR 5501 [a] [1]; Matter of Barry H., 24 AD3d 1137, 1139 [2005]).