| Matter of Brandon S.M. |
| 2007 NY Slip Op 07175 [43 AD3d 1371] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Brandon S.M., Appellant. Livingston CountyAttorney, Respondent. |
—[*1] David J. Morris, County Attorney, Geneseo (Wendy S. Sisson of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Livingston County (Joan S. Kohout, J.), enteredSeptember 29, 2006 in a proceeding pursuant to Family Court Act article 3. The orderadjudicated respondent a juvenile delinquent and placed him on probation for a period of 24months.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Respondent appeals from an order adjudicating him to be a juveniledelinquent based on findings that he committed acts that, if committed by an adult, wouldconstitute the crimes of forcible touching (Penal Law § 130.52) and sexual abuse in thefirst degree (§ 130.65 [1]). Respondent failed to preserve for our review his contention thatthe evidence is legally insufficient to support the finding of forcible touching (see Matter of Matthew M.R., 37 AD3d1135 [2007]). In any event, "the evidence presented at the hearing, when viewed in the lightmost favorable to the presentment agency . . . , is legally sufficient to prove beyonda reasonable doubt that respondent committed the acts alleged in the petition" (Matter of Zachary R.F., 37 AD3d1073 [2007]; see Matter of TroyJ., 22 AD3d 581 [2005]).
Respondent also failed to preserve for our review his contention that Family Court's findingwith respect to forcible touching must be vacated and that count dismissed because it isduplicitous and violates Family Court Act § 311.1 (3) (d), and we decline to exercise ourpower to review it as a matter of discretion in the interest of justice (see generally People v McAllister, 41AD3d 1186 [2007]; People vFerguson, 21 AD3d 1415 [2005], lv denied 6 NY3d 753 [2005]; People v Parker, 2 AD3d 1282[2003], lv denied 2 NY3d 744 [2004]). We reject the further contention of respondentthat the Law Guardian failed to provide meaningful representation. Contrary to respondent'scontention, the Law Guardian was not ineffective in failing to present testimony that theincidents did not occur. The victim testified that there were no witnesses to the incidents, andrespondent himself could not establish that he was not present when the incidents occurred. Therecord establishes that the cross-examination of the victim by the Law Guardian raised issueswith respect to the victim's credibility and that the Law Guardian had a coherent and reasonabletrial strategy, and we thus [*2]conclude that respondent was notdenied effective assistance of counsel (see Matter of Jeffrey V., 82 NY2d 121, 126-127[1993]; Matter of Michael DD., 33AD3d 1185, 1186-1187 [2006]; Matter of Shaheen P.J., 29 AD3d 996, 997-998 [2006]). We haveconsidered respondent's remaining contention and conclude that it is without merit.Present—Scudder, P.J., Hurlbutt, Gorski, Centra and Green, JJ.