| Matter of Jimmy D. |
| 2009 NY Slip Op 04423 [63 AD3d 737] |
| June 2, 2009 |
| Appellate Division, Second Department |
| In the Matter of Jimmy D., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Norman Corenthal and SusanB. Eisner 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, Queens County (Lubow, J.), dated July 17,2008, which, upon a fact-finding order of the same court dated August 23, 2007, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of criminal sexual act in the first degree, criminal sexual act in the thirddegree, sexual misconduct, unlawful imprisonment in the second degree (two counts), course ofsexual conduct against a child in the second degree, attempted sexual abuse in the first degree,and attempted sexual abuse in the third degree, adjudged him to be a juvenile delinquent, andplaced him on probation or a period of 18 months. The appeal brings up for review thefact-finding order, and the denial, after a hearing, of that branch of the appellant's omnibusmotion which was to suppress his written statement to a police detective.
Ordered that the order of disposition is modified, on the law and as a matter of discretion, byvacating the provisions thereof adjudicating the appellant a juvenile delinquent based upon thefinding that he committed acts which, if committed by an adult, would have constituted thecrimes of unlawful imprisonment in the second degree (two counts) and sexual misconduct, andsubstituting therefor provisions dismissing those counts of the petition; as so modified, the orderof disposition is affirmed, without costs or disbursements, and the fact-finding order is modifiedaccordingly.
Contrary to the appellant's contention, the presentment agency met its burden of proving thevoluntariness of his inculpatory statement to the police detectives. The evidence does not suggestthat [*2]the detectives engaged in a "seemingly conscious schemeto isolate the [appellant] from his mother in an apparent effort to bar his free exercise of the rightto counsel" (People v Butler, 112 AD2d 1006, 1007 [1985], citing People vBevilacqua, 45 NY2d 508, 513 [1978]; People v Townsend, 33 NY2d 37, 39-42[1973]]). The appellant's mother accompanied him to the building where he was questioned andwas present during the waiver of his Miranda rights (see Miranda v Arizona, 384US 436 [1966]). She then gave the detective permission to interview the appellant outside of herpresence. The appellant's whereabouts were never concealed from his mother and there is noevidence that he asked that his mother be present while he was questioned (see People vPrice, 128 AD2d 560, 560-561 [1987]). Although the detective implied that the appellantmay be able to get counseling if he told the truth, this would not prompt the appellant to falselyadmit to the crime (see People vGinsberg, 36 AD3d 627, 628 [2007]; People v Pugh, 201 AD2d 934 [1994];People v Baird, 167 AD2d 693 [1990]).
The appellant contends that the two counts of unlawful imprisonment in the second degreeshould have been dismissed under the merger doctrine. The merger doctrine precludes a findingwith respect to the counts of unlawful imprisonment since the criminal sexual act and theimprisonment were "essentially simultaneous and inseparable, and any restriction on the victim'smovements was wholly incidental to the commission of the criminal sexual act" (Matter of Charles S., 41 AD3d484, 486 [2007]; see Matter ofBradley M., 36 AD3d 815, 815-816 [2007]). Therefore, we modify the order ofdisposition and the fact-finding order accordingly.
The Family Court dismissed the sexual misconduct count in its oral decision on the recordmade after the fact-finding hearing. However, the fact-finding order and the order of dispositioninclude a finding as to this count. " 'A written order must conform strictly to the court's decision'" (Scheuering v Scheuering, 27AD3d 446, 447 [2006], quoting Di Prospero v Ford Motor Co., 105 AD2d 479, 480[1984]). Where there is a conflict, the decision controls (see Verdrager v Verdrager, 230AD2d 786, 787 [1996]; Green v Morris, 156 AD2d 331 [1989]; Di Prospero v FordMotor Co., 105 AD2d at 480). An inconsistency between the two may be corrected either byway of a motion for resettlement or on appeal (see CPLR 2221, 5019 [a]; Spier v Horowitz, 16 AD3d 400[2005]; Green v Morris, 156 AD2d at 331; Young v Casabonne Bros., 145 AD2d244, 248 [1989]). Therefore, we modify the order of disposition and the fact-finding order toconform to the Family Court's oral decision.
The appellant's remaining contentions are without merit. Dillon, J.P., Florio, Balkin andAustin, JJ., concur.