| Matter of Gordon B. |
| 2011 NY Slip Op 02766 [83 AD3d 1164] |
| April 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Gordon B., a Person Alleged to be a JuvenileDelinquent, Appellant. William Favreau, as Clinton County Attorney, Respondent. (And AnotherRelated Proceeding.) |
—[*1] Van Crockett, Clinton County Department of Social Services, Plattsburgh, forrespondent.
Egan Jr., J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.),entered May 11, 2010, which, in two proceedings pursuant to Family Ct Act article 3, deniedrespondent's motion to dismiss the petitions, (2) from two orders of said court, entered June 14,2010, which granted petitioner's applications, in two proceedings pursuant to Family Ct Actarticle 3, to adjudicate respondent a juvenile delinquent, and (3) from two orders of said court,entered June 15, 2010, which placed respondent in the custody of the Clinton County Departmentof Social Services.
In March 2010, respondent (born in 1997) was charged in two petitions, each alleging actsperpetrated on separate victims which, if committed by an adult, would have constituted thecrimes of criminal sexual act in the first degree and endangering the welfare of a child. Thecharges stemmed from the allegations of respondent's two younger male cousins (born in 1998and 1999) that, during late July or early August 2009, respondent engaged in anal sexual conductwith them by forcible compulsion. Respondent was arrested in relation to these charges in [*2]August 2009, and the Clinton County Probation Departmentreferred the matter to petitioner in September 2009. In March 2010, petitioner commenced theseproceedings.
Respondent moved to dismiss both petitions based on petitioner's delay in filing them.Family Court denied the motion with respect to each petition and, after conducting a fact-findinghearing, determined that, with respect to each victim, respondent had engaged in acts which, hadhe been an adult, would constitute the crimes of criminal sexual act in the first degree andendangering the welfare of a child. After a dispositional hearing, Family Court adjudicatedrespondent a juvenile delinquent and directed that he be placed in the custody of the ClintonCounty Commissioner of Social Services for approximately one year. Respondent now appealsfrom all five orders.[FN1]
Initially, we address respondent's argument that Family Court erred in denying his motion todismiss the petitions. This Court has recently held that, while the speedy trial provisions set forthin Family Ct Act article 3 only apply after a petition is filed, "[p]repetition delay, however, mayresult in an unconstitutional denial of due process" (Matter of Richard JJ., 66 AD3d 1152, 1153 [2009]; seeFamily Ct Act § 310.2; Matter of Benjamin L., 92 NY2d 660, 667-669 [1999];cf. People v Staley, 41 NY2d 789, 791 [1977]). "To determine whether a respondent'sdue process rights were violated by a delay in filing, the court must engage in a balancing offactors, including the extent of the delay, the reasons for the delay, the nature of the charges, theextent of the prefiling detention, prejudice to the defense due to the delay, any special mental oremotional needs of the juvenile, and the need for and possibility of success of rehabilitation"(Matter of Richard JJ., 66 AD3d at 1153 [citations omitted]), and no one factor isdeterminative (see id.). "When applying this balancing test, courts must remain acutelycognizant of the goals, character and unique nature of juvenile proceedings" (id. [internalquotation marks and citation omitted]), the central goal of which is rehabilitation through promptintervention and treatment (see Matter of Benjamin L., 92 NY2d at 670).
Family Court properly balanced the relevant factors in denying respondent's motion todismiss. Family Court acknowledged the goals of Family Ct Act article 3 (see id.) andfound that, while petitioner was at fault for this delay, petitioner's excuse amounted to a "goodfaith miscommunication between the parents . . . and the prosecuting attorney"regarding whether the prosecuting attorney was waiting for the victims' parents to obtain medicalrecords. Family Court also considered the serious nature of the charges alleged, that respondentwas just 12 years old at the time of alleged incidents, and that, if he were found to havecommitted the alleged acts, respondent may have special mental or emotional needs andrehabilitation would be required. Finally, we note that respondent was not detained prior to filingthe petitions and did not assert any actual prejudice to his defenses as a result of the delay(compare Matter of Richard JJ., 66 [*3]AD3d at1154).[FN2]
We also reject respondent's argument that petitioner failed to prove beyond a reasonabledoubt that he committed the alleged acts and that Family Court erred in crediting the testimony ofthe victims. Inasmuch as respondent argues that Family Court's determination was not supportedby legally sufficient evidence, this contention is unpreserved for appellate review as respondentfailed to raise this specific claim before Family Court (see Matter of Jason P., 78 AD3d 838, 839 [2010]; Matter of Robert M., 71 AD3d896, 897 [2010]; see generallyMatter of Arthur O., 55 AD3d 1019, 1020 [2008]; Matter of Daniel JJ., 31 AD3d 930, 930 [2006], lv denied 7NY3d 714 [2006]). To the extent that respondent's appeal asserts a weight of the evidenceargument, when presented with such an argument, "where a different determination would nothave been unreasonable, we view the evidence in a neutral light while according deference to thecredibility determinations of Family Court" (Matter of Jared WW., 56 AD3d 1009, 1010 [2008]; see Matter of Clifton NN., 64 AD3d903, 905 [2009]; Matter of ShaneEE., 48 AD3d 946, 948 [2008]).
At the fact-finding hearing, petitioner presented the testimony of both victims as well as thevictims' mother. The victims' mother testified that her family visited respondent's home forapproximately two weeks between July and August 2009. The victims' mother testified that 13people, including her family and respondent's family, resided in the four-bedroom home ofrespondent's family during the visit, and that bedrooms and beds were shared. The victims eachslept with respondent in respondent's bed, and after the visit ended and the family had returnedhome, the victims disclosed the allegations of abuse. The mother testified that this prompted herto examine the children's backsides, which she described as "red, very raw [and that the oldervictim] had a bruise, a good size black and blue mark on his back." Both victims testified that, onseparate occasions during that two-week visit, each was sleeping in the same bed as respondentwhen they were awoken by respondent inserting his penis into the "butt" of the victims whilerespondent pinned them face down on the bed. The older victim also testified that, during theincident, respondent punched him in the back. At the fact-finding hearing, respondent admittedthat both victims had slept in his bedroom at some point during their stay, but denied havingcommitted the acts alleged. Respondent's mother also testified that she did not notice anybruising on the back of the older child and that, during the visit, she was unaware that one of thevictims had slept in respondent's bedroom. Family Court determined that both victims and theirmother presented credible testimony and, viewing this evidence in a neutral light and deferring toFamily Court's ability to assess the witnesses' credibility (see Matter of Clifton NN., 64AD3d at 905), we find that the court's determination was supported by the weight of theevidence.
Finally "in noting that Family Court has broad discretion in entering dispositional orders" (Matter of Orazio A., 81 AD3d1104, 1106 [2011]; see Matter ofTjay T., 34 AD3d 1060, 1062 [2006]), we find that, given the evidence in thisproceeding, including the fact that there were two victims, the aggressive nature of the acts,respondent's denial—as well as his parents' denial—that he had committed the actsand the testimony of a mental health clinician that respondent is at a medium risk for recidivism,we cannot say that Family Court erred in determining that placement in the custody of theClinton County Department of Social Services [*4]was the leastrestrictive alternative consistent with both respondent's needs and the needs of the community(see Family Ct Act § 352.2 [1], [2] [a]; Matter of Austin Q., 63 AD3d 1224, 1225 [2009]; Matter of Melissa VV., 26 AD3d682, 683 [2006]).
Peters, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the appeals from the ordersentered May 11, 2010 and June 14, 2010 are dismissed, without costs. Ordered that the ordersentered June 15, 2010 are affirmed, without costs.
Footnote 1: An appeal as of right can onlybe taken from an order of disposition in a Family Ct Act article 3 proceeding (see FamilyCt Act § 1112 [a]). As such, respondent's appeals from the orders entered May 11, 2010and June 14, 2010 must be dismissed. Respondent's appeals from the orders of disposition bringthose orders up for review (see Matter ofBarry H., 24 AD3d 1137, 1139 [2005]).
Footnote 2: As respondent's contention thathe was prejudiced by petitioner's delay because witnesses' memories may have faded is raised forthe first time on appeal, it is not properly before us (see Matter of Kubista v Kubista, 11 AD3d 743, 745 [2004]).