| Matter of Javen C. |
| 2008 NY Slip Op 09595 [57 AD3d 537] |
| December 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Javen C., a Person Alleged to be a Juvenile Delinquent,Appellant. |
—[*1] Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Justin R.Adin of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from anorder of fact-finding and disposition (one paper) of the Family Court, Westchester County (Klein, J.),dated December 13, 2007, made after a hearing, which found that the appellant committed an actwhich, if committed by an adult, would have constituted the crime of criminal possession of marijuana inthe fifth degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of12 months from October 31, 2007 to October 31, 2008.
Ordered that the appeal from so much of the order of fact-finding and disposition as placed theappellant on probation for a period of 12 months from October 31, 2007 to October 31, 2008 isdismissed, without costs or disbursements, as the period of probation has expired (see Matter of Daniel R., 51 AD3d 933[2008]); and it is further,
Ordered that the order of fact-finding and disposition is affirmed insofar as reviewed, without costsor disbursements.
Contrary to the appellant's contention, the petition was not facially deficient. The petition containedevidentiary allegations as to each element of the underlying offense (see Penal Law §221.10), including a sworn police report and a sworn laboratory report bearing the applicable policeincident number, stating that the evidence was received by the lab from the arresting officer andsubsequently found to be marijuana (see Family Ct Act § 311.1 [4]; § 311.2;Matter of Jonathan T., 247 AD2d 482 [1998]; see also CPLR 3020 [a]).
The Family Court did not err in denying that branch of the appellant's pretrial motion which soughtto preclude police testimony. Although the appellant contends that he was improperly questioned bypolice, he does not allege that this incident yielded a statement or any other evidence that was sought tobe introduced or actually introduced at the fact-finding hearing. Thus, there is no basis for suppressionof the police testimony (see People v Burr, 70 NY2d 354, 362 [1987], cert denied485 US 989 [1988]). The Family Court also did not err in quashing the appellant's subpoena forthe memo book of one of the arresting officers. That item was not a prior statement of a witness, sincethat officer did not testify at the fact-finding hearing (see People v Rosario, 9 NY2d 286, 289[1961], cert denied 368 US 866 [1961]; CPL 240.45). Further, there was no showing that thematerial sought was exculpatory (see Peoplev Carnett, 19 AD3d 703 [2005]; People v Delvecchio, 187 AD2d 726 [1992];see also People v Ramirez, 224 AD2d 455, 456 [1996]).
The Family Court did not improvidently exercise its discretion in finding that the forensic scientistpossessed the requisite skill, training, education, knowledge, or expertise to render a reliable opinion asto the identity of the material seized upon the appellant's arrest (see People v Menendez, 50 AD3d 1061 [2008]). Further, the evidenceprovided reasonable assurances as to the chain of custody of the material in question (see People vJulian, 41 NY2d 340, 343 [1977]; People v Valdez, 41 AD3d 316 [2007]; People v Isaac, 40 AD3d 1118[2007]). Thus, any deficiencies in the chain of custody went only to the weight to be accorded theevidence, not its admissibility (see People v Julian, 41 NY2d at 343; People v Isaac,40 AD3d at 1118).
Viewing the evidence in the light most favorable to the Presentment Agency (see Matter ofDavid H., 69 NY2d 792, 793 [1987]; Matter of Charles S., 41 AD3d 484, 485 [2007]), we find that it waslegally sufficient to support the finding that the appellant committed an act which, if committed by anadult, would have constituted the crime of criminal possession of marijuana in the fifth degree (seePenal Law § 221.10). Upon our independent factual review, we are satisfied that the FamilyCourt's findings of fact were not against the weight of the evidence (cf. CPL 470.15 [5]).
The appellant's remaining contentions are without merit. Ritter, J.P., Florio, Miller and Dillon, JJ.,concur.