| Matter of Jamel G. |
| 2008 NY Slip Op 04695 [51 AD3d 918] |
| May 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Jamel G., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and ScottShorr of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of disposition of the Family Court, Kings County (Weinstein, J.), dated May 31,2007, which, upon a fact-finding order of the same court dated March 13, 2007, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the second degree, criminal possession of stolen property inthe fifth degree, attempted assault in the third degree (three counts), and menacing in the thirddegree (three counts), adjudged him to be a juvenile delinquent and placed him on probation for aperiod of 18 months subject to certain conditions. The appeal brings up for review thefact-finding order dated March 13, 2007 and the denial of that branch of the appellant's omnibusmotion which was to suppress identification testimony.
Ordered that the order of disposition is affirmed, without costs or disbursements.
Contrary to the appellant's contention, the presentment agency met its initial burden ofdemonstrating that the identification procedure was reasonable and not unduly suggestive bypresenting testimony that the identification was spontaneous and occurred in close spatial andtemporal proximity to the offense (see Matter of Kassan D., 282 AD2d 747 [2001]).Moreover, the appellant offered no proof of any unduly suggestive police conduct (cf.People v Chipp, 75 NY2d 327 [1990], cert denied 498 US 833 [1990]).
Viewing the evidence in the light most favorable to the presentment agency (see [*2]Matter of David H., 69 NY2d 792, 793 [1987]), we find thatthe identification evidence was legally sufficient to support the findings that the appellantcommitted acts which, if committed by an adult, would have constituted the crimes of robbery inthe second degree, criminal possession of stolen property in the fifth degree, attempted assault inthe third degree, and menacing in the third degree (cf. People v Gonzalez, 3 AD3d 579 [2004]). The discrepancies andinconsistencies in the identification testimony were not of such a magnitude as to render thattestimony incredible or unreliable as a matter of law (see Matter of Christian M., 37 AD3d 834 [2007]; Matter ofNikkia C., 187 AD2d 581 [1992]). Such discrepancies and inconsistencies are matters to beconsidered by the finder of fact in assessing a witness's credibility (see Matter of Christian M., 37 AD3d834 [2007]). Resolution of issues of credibility is primarily a matter to be determined by thefinder of fact, which saw and heard the witnesses, and its determination should be accorded greatdeference on appeal (see Matter of Ryan W., 143 AD2d 435 [1988]; cf. People v Romero, 7 NY3d 633,644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]). Upon the exercise of our factual review power, we are satisfied that the findings offact were not against the weight of the evidence (see Matter of Ryan W., 143 AD2d 435[1988]; cf. People v Romero, 7NY3d 633 [2006]).
The Family Court has broad discretion in entering dispositional orders (see Family CtAct § 141). Based upon the nature of the incident, the recommendations made in theprobation report and mental health report, the appellant's poor record of attendance andperformance in school, the appellant's association with friends who were in a gang and were anegative influence on him, and the appellant's disciplinary history in school including twosuspensions, one of which was for hitting a teacher, the Family Court properly found that the"least restrictive [dispositional] alternative" was probation supervision for a period of 18 months(see Family Ct Act § 352.2 [2] [a]; see Matter of Melissa B. 49 AD3d 536 [2008]; Matter of Oneil D., 35 AD3d 602[2006]; Matter of Cindy A., 31AD3d 440 [2006]; Matter of LeahG., 23 AD3d 658 [2005]; Matter of Rosario S., 18 AD3d 563 [2005]; Matter of AntonioC., 294 AD2d 123 [2002]).
The appellant's remaining contention is unpreserved for appellate review and, in any event, iswithout merit. Spolzino, J.P., Carni, Dickerson and Eng, JJ., concur.