| Matter of James C. |
| 2007 NY Slip Op 07802 [44 AD3d 1148] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of James C., a Person Alleged to be a JuvenileDelinquent. Joseph J. Sluzar, as Broome County Attorney, Respondent. James C.,Appellant. |
—[*1] Joseph Sluzar, County Attorney, Binghamton (Holly Zurenda-Cruz of counsel), forrespondent.
Mercure, J.P. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered December 12, 2006, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 3, to adjudicate respondent a juvenile delinquent and committed him to thecustody of the Commissioner of Mental Retardation and Developmental Disabilities for a periodof one year.
In October 2006, petitioner commenced this juvenile delinquency proceeding againstrespondent (born in 1993), charging him with acts that, if committed by an adult, wouldconstitute sexual abuse in the first degree. Respondent had previously been found to be anincapacitated person in connection with a separate proceeding and, on the consent of the parties,Family Court adjudged him an incapacitated person herein without conducting a new capacityhearing. Following a probable cause hearing, Family Court determined that there was probablecause to believe that respondent committed the acts charged, dismissed the juvenile delinquencyproceeding, and committed respondent to the custody of the Commissioner of MentalRetardation and Developmental Disabilities for a period not to exceed one year. Respondentappeals, asserting that Family Court erred in finding probable cause to believe he committed acts[*2]that would constitute sexual abuse in the first degree ifcommitted by an adult. We disagree.
At a probable cause hearing, Family Court is required to determine "whether it is reasonableto believe that a crime was committed[,] and . . . that the respondent committedsuch crime" (Family Ct Act § 325.3 [1]).[FN*]Here, although the seven-year-old victim had difficulty remembering and describing the event,she testified that respondent "touched [her] private parts" and vagina, and that he "gave [her] ahickey" by sucking on her neck. Her testimony was corroborated by her father, who stated thatafter he saw respondent hug and tackle the victim onto her bed, he noticed a quarter-sized bruiseon the victim's neck. According due deference to Family Court's resolution of any issuesregarding the victim's credibility (see e.g. Matter of Zachary A., 307 AD2d 464, 465[2003]), this evidence established probable cause that respondent committed the elements ofsexual abuse in the first degree (see Penal Law § 130.65 [3]; Matter of MichaelJ., 267 AD2d 126, 126 [1999]; Matter of David V., 226 AD2d 319, 319 [1996]; see also People v Harris, 31 AD3d1189, 1189 [2006], lv denied 7 NY3d 848 [2006]; People v Gray, 201 AD2d961, 962 [1994], lv denied 83 NY2d 1003 [1994]). We note, however, that inasmuch asthe acts of which respondent was accused constitute a felony, rather than a misdemeanor, thecourt's dismissal of the juvenile delinquency petition was premature (see Family Ct Act§ 322.2 [5] [b], [d]; cf. Matter of Ardon II., 175 AD2d 355, 355-356 [1991]), andwe therefore modify by reinstating the petition.
Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reinstating the petition, and, as so modified, affirmed.
Footnote *: If Family Court finds arespondent to be incapacitated—which is not disputed here—and probable cause tobelieve the respondent committed a felony, "it shall order the respondent committed to thecustody of the . . . commissioner of mental retardation and developmentaldisabilities for an initial period not to exceed one year" (Family Ct Act § 322.2 [5] [a]).