| Matter of Andre S. |
| 2008 NY Slip Op 04879 [51 AD3d 1030] |
| May 27, 2008 |
| Appellate Division, Second Department |
| In the Matter of Andre S., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Dona B.Morris, and Suzette C. Rivera 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 (McLeod, J.), dated November14, 2006, which, upon a fact-finding order dated September 29, 2006, made after a hearing,finding that the appellant had committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the first degree (two counts), menacing in the third degree(two counts), and grand larceny in the fourth degree (two counts), adjudged him to be a juveniledelinquent and directed that he be placed on probation for a period of 24 months. The appealfrom the order of disposition brings up for review the fact-finding order.
Ordered that the order of disposition is modified, on the law, by deleting the provisionthereof adjudicating the appellant a juvenile delinquent based upon the finding that hecommitted, against the complainant O'Leary, acts which, if committed by an adult, would haveconstituted the crimes of robbery in the first degree, menacing in the third degree, and grandlarceny in the fourth degree, and substituting therefor a provision dismissing those counts of thepetition; as so modified, the order of disposition is affirmed, without costs or disbursements, andthe fact-finding order is modified accordingly.
The appellant was charged with, inter alia, robbery in the first degree, menacing in the thirddegree, and grand larceny in the fourth degree stemming from an incident in which he allegedlyrobbed two persons. In an order dated October 14, 2005 the Criminal Court removed the matterto the Family Court pursuant to CPL 180.75. After a fact-finding hearing, the Family Court [*2]found that the appellant had committed acts that, if committed byan adult, would have constituted the crimes of robbery in the first degree (two counts), menacingin the third degree (two counts), and grand larceny in the fourth degree (two counts). The FamilyCourt ordered the appellant placed on probation for a period of 24 months.
As the Presentment Agency correctly concedes, the petition was facially insufficient as to thecounts involving the complainant O'Leary because it failed to set forth sworn nonhearsayallegations for purposes of those counts (see Family Ct Act § 311.2). Thus, thosecounts of the petition pertaining to the complainant O'Leary should have been dismissed.
The appellant contends on appeal that the Family Court petition was jurisdictionally deficientin that, inter alia, the supporting depositions executed by an Assistant District Attorney and bythe complainant Taylor were not properly verified. However, the supporting depositions, whichwere executed in accordance with CPL 100.30 (1) (d), are sufficient for the purposes of thepetition (see Family Ct Act § 311.1 [7]; CPL 100.30 [1] [d]; Matter of LamontD., 247 AD2d 615, 616 [1998]). Further, the petition, when read in its entirety, contained"non-hearsay allegations of the factual part of the petition or of any supporting depositions [to]establish, if true, every element of each crime charged and the [appellant's] commission thereof"(Family Ct Act § 311.2 [3]; see Family Ct Act § 311.1 [7]; Matter ofDesmond J., 93 NY2d 949, 951 [1999]). Specifically, the petition sufficiently alleged theelements of the charged offenses of, inter alia, robbery in the first degree (see People v Lopez,73 NY2d 214, 222 [1989]; People v Peaks, 297 AD2d 578, 579 [2002]; People vGuerriero, 221 AD2d 560, 561 [1995]; People v Ruiz, 216 AD2d 63, 64 [1995],affd 87 NY2d 1027 [1996]; People v Weatherly, 144 AD2d 509 [1988]), andmenacing in the third degree (see Matter of Monay W., 33 AD3d 809, 810 [2006];Matter of John F., 12 AD3d 509, 510 [2004]; Matter of Rosalis D., 305 AD2d407, 408 [2003]).
Contrary to the appellant's contention, this Court may review a suppression determination inthe absence of findings of fact and conclusions of law if "there was a full and fair hearing on themotion to suppress and an adequate record has been made" (People v Golliver, 132 AD2d618, 618 [1987]; see People v Rudolph, 266 AD2d 568 [1999]; People v Matthews,222 AD2d 457 [1995]; People v Brown, 113 AD2d 893, 894 [1985]; see alsoCPL 710.60 [6]). Here, the record of the suppression hearing reflects that the complainantTaylor identified the appellant as part of his in-court testimony based upon his independentobservations (see People v Thomas, 51 NY2d 466, 474-475 [1980]), notwithstanding anyimpropriety in the pretrial identification procedures (see People v Adelman, 36 AD3d926, 927 [2007]; People v Radcliffe, 273 AD2d 483, 484 [2000]; People v Hyatt,162 AD2d 713, 714 [1990]).
In particular, the complainant Taylor testified that he had an unobstructed view of theappellant while the appellant walked alongside him for a distance of approximately one-halfblock before the robbery, and also observed the appellant while handing his property to him.Thus, the Family Court did not err in admitting the identification testimony.
Viewing the evidence in the light most favorable to the Presentment Agency (see Matterof David H., 69 NY2d 792, 793 [1987]; Matter of Charles S., 41 AD3d 484, 485[2007]), we find that it was legally sufficient to support the findings in the fact-finding order thatthe appellant committed an act which, if committed by an adult, would have constituted robberyin the first degree against Taylor (see Penal Law § 160.15 [4]; People v Lopez,73 NY2d at 222; People v Guerriero, 221 AD2d at 561; People v Ruiz, 216AD2d at 63-64; People v Weatherly, 144 AD2d at 509). The Family Court also properlyfound that there was legally sufficient evidence that the appellant committed an act which, ifcommitted by an adult, would have constituted menacing in the third degree (see Matter ofMonay [*3]W., 33 AD3d at 810; Matter of John F.,12 AD3d at 509-510; Matter of Rosalis D., 305 AD2d at 408).
Resolution of issues of credibility is primarily a matter to be determined by the finder of fact,which saw and heard the witnesses, and its determination should be accorded great deference onappeal (see Matter of Anthony R., 43 AD3d 939 [2007]; Matter of Charles S., 41AD3d 484 [2007]; Matter of Christian M., 37 AD3d 834 [2007]; cf. People vRomero, 7 NY3d 633, 644-645 [2006]). Upon the exercise of our factual review power(cf. CPL 470.15 [5]), we are satisfied that the Family Court's fact-finding determinationwas not against the weight of the evidence (see Family Ct Act § 342.2 [2]; cf.People v Romero, 7 NY3d 633 [2006]).
Finally, the appellant contends that the Family Court erred in denying his request to play atthe fact-finding hearing the tape of the complainant's 911 telephone call for purposes ofimpeachment. The nature and proper scope of cross-examination is a matter generally left to thesound discretion of the hearing court (see People v Schwartzman, 24 NY2d 241, 244[1969], cert denied 396 US 846 [1969]; People v Roussopoulos, 261 AD2d 559[1999]). Here, the court providently exercised that discretion, particularly since the attorney forthe appellant cross-examined the witness regarding the substance of the 911 tape (see Peoplev Hemphill, 247 AD2d 339 [1998]; People v Rowe, 236 AD2d 637, 638 [1997];People v Dominguez, 210 AD2d 249, 250 [1994]). Further, the court providentlyexercised its discretion in declining to sanction the Presentment Agency for failing to produce the911 tape during the fact-finding hearing, since the Presentment Agency provided the attorney forthe appellant with the opportunity to review and copy the tape, as well as the "sprint" report, priorto the fact-finding hearing (see CPL 240.45; People v Bailey, 24 AD3d 106[2005]; Matter of Jason A., 7 AD3d 791 [2004]; see also People v Robinson, 249AD2d 333, 334 [1998]). Skelos, J.P., Santucci, Balkin and Chambers, JJ., concur.