| Matter of Brittenie K. |
| 2008 NY Slip Op 02926 [50 AD3d 1203] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Brittenie K., a Person Alleged to be a JuvenileDelinquent. Jonathan C. Wool, as Assistant County Attorney of Franklin County, Respondent; Brittenie K.,Appellant. |
—[*1] Jonathan J. Miller, County Attorney, Malone (Jonathan C. Wool of counsel), forrespondent.
Kavanagh, J. Appeals from an order and amended order of the Family Court of FranklinCounty (Main, Jr., J.), entered March 15, 2007 and April 30, 2007, which granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 3, to adjudicate respondent ajuvenile delinquent.
On November 14, 2006, a student at the St. Regis Falls Central School reported to a teacherthat there was a bomb threat written on the wall of a stall in the girl's bathroom. Respondent wasidentified as the perpetrator by a student who was present in the bathroom when the writing wasmade and her handwriting was subsequently identified by one of her teachers as that being usedto make the threat. A felony complaint was filed in Family Court charging respondent withfalsely reporting an incident in the first degree, and a proceeding was subsequently commencedto adjudicate respondent a juvenile delinquent. Following a fact-finding hearing, Family Courtentered an order which determined that respondent had in fact committed the act in question andadjudicated her a juvenile delinquent. In an amended dispositional order, respondent was placedon probation for two years and required to perform [*2]250 hoursof community service, abide by a curfew, wear an electronic home monitoring device and stay offschool grounds except while attending class. Respondent appeals.[FN1]
Respondent argues that Family Court erred by denying her mother's oral request made at theoutset of the fact-finding hearing that an expert be appointed to perform a handwriting analysison the writing on the bathroom stall. Family Court did not pass on this request but, rather,suggested to respondent's mother that she discuss the matter with her daughter's attorney.Respondent's attorney never made such a motion, nor renewed or adopted the mother's requestand counsel did not object to the court's failure to appoint such an expert. Therefore, on thisrecord, we cannot say that Family Court erred in not appointing a handwriting analysisexpert.[FN2]
Nor do we agree that the evidence failed to establish that respondent was guilty beyond areasonable doubt or that Family Court's finding was based on a lesser standard (seeFamily Ct Act § 342.2 [2]; Matterof Brooke II., 45 AD3d 1234, 1235 [2007]; Matter of William A., 4 AD3d 647, 647-648 [2004]). "Theevidence supporting an adjudication is legally sufficient if there exists any valid line of reasoningand permissible inferences from which a reasonable person could conclude as the factfinder did,and which evidence establishes all the elements of the crime charged beyond a reasonable doubt"(Matter of Michael DD., 33 AD3d1185, 1186 [2006]; see Matter of William A., 4 AD3d at 647). Not only wasrespondent identified at the hearing by another student as the person responsible for writing thethreat, but evidence was introduced which established that respondent was one of three studentsin the bathroom at the time the threat was made. In addition, respondent's teacher, who had her inclass on a daily basis, recalled that on the day in question respondent acted strangely andappeared upset. The teacher also testified that she instructed respondent in four separate coursesand, as a result, was familiar with her handwriting which she identified as that which had beenused to write the threat. Viewing this evidence in a light most favorable to petitioner and givingdeference to Family Court's resolution of credibility issues (see Matter of Timothy HH., 41 AD3d 913, 914 [2007]; [*3]Matterof Jesse L., 37 AD3d 998, 999 [2007]; Matter of Joshua F., 309 AD2d 1012,1013 [2003]), our review of the record leads us to the conclusion that the court correctlydetermined that each of the elements of the crime of falsely reporting an incident in the firstdegree had in fact been established.
We agree, however, that Family Court's disposition which, among other things, placedrespondent on probation for 24 months,[FN3]and required her to complete 250 hours of community service[FN4]and wear an electronic monitoring device,[FN5] should be modified. No evidence was presented during any of these proceedings that respondenthad any other encounters with the criminal justice system and her school records do not revealthe existence of any incidents indicative of serious behavioral issues. Mindful that the court isrequired to impose the least restrictive alternative that is both consistent with respondent's bestinterests and that of the surrounding community (see Family Ct Act § 352.2 [2] [a];Matter of Melissa VV., 26 AD3d682, 683 [2006]; Matter of Jesse L., 37 AD3d at 999; Matter of Zachary A.,307 AD2d 464, 465 [2003]), we are of the view that the disposition should be modified. In thatregard, the period of probation supervision will be reduced to 18 months, and respondent'scommunity service commitment reduced to 100 hours. Additionally, the curfew as imposed ismodified to 8:00 p.m. on evenings prior to scheduled school days and 9:00 p.m. on otherevenings. Finally, those parts of Family Court's disposition which required respondent to wear anelectronic monitoring device and barred her from school property other than during instructionalhours, thus preventing her from participating in after-school activities, are hereby vacated.
Mercure, J.P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order entered March15, 2007 is dismissed, without costs. Ordered that the amended order entered April 30, 2007 ismodified, on the facts, without costs, by (1) reducing respondent's period of probation to 18months, (2) reducing respondent's required community service to 100 hours, (3) modifyingrespondent's curfew to 8:00 p.m. on evenings prior to scheduled school days and 9:00 p.m. onother nights, (4) striking the requirement that respondent be monitored by an electric device, and(5) striking the provision that barred her from being on school property other than duringinstructional hours, and, as so modified, affirmed.
Footnote 1: Respondent's appeal fromFamily Court's fact-finding order must be dismissed as this order is not appealable as of right andrespondent has not sought leave to appeal from that order (see Family Ct Act §1112 [a]; Matter of Jason FF., 224 AD2d 900, 900 [1996]). However, respondent mayraise her challenge to the fact-finding order in her appeal from the dispositional order (see Matter of Barry H., 24 AD3d1137, 1139 [2005]; Matter ofJessica GG., 19 AD3d 765, 765 n [2005]).
Footnote 2: The oral application did notmake the required showing that the expert was in fact necessary (see County Law §722-c; People v Rockwell, 18 AD3d969, 970 [2005], lv denied 5 NY3d 768 [2005]; People v Brand, 13 AD3d 820, 821 [2004], lv denied 4NY3d 851 [2005]; People v Dearstyne, 305 AD2d 850, 852 [2003], lv denied 100NY2d 593 [2003]; People v Dove, 287 AD2d 806, 807 [2001]).
Footnote 3: Petitioner requested 18 monthsof probation and the probation report recommended 12 months of probation.
Footnote 4: The probation report andpetitioner recommended 100 hours of community service.
Footnote 5: This was not recommended inthe probation report or requested by petitioner.