| Matter of Quamel D. |
| 2010 NY Slip Op 08730 [78 AD3d 1050] |
| November 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Quamel D., Appellant. |
—[*1]
In two juvenile delinquency proceedings pursuant to Family Court Act article 3, the appealsare from (1) an order of disposition of the Family Court, Kings County (Weinstein, J.), entered inthe proceeding commenced under docket No. D-22440-09 and dated November 4, 2009, which,upon a fact-finding order of the same court dated October 7, 2009, made after a hearing, findingthat the appellant committed acts which, if committed by an adult, would have constituted thecrimes of assault in the second degree, assault in the third degree, criminal possession of aweapon in the second degree, and menacing in the third degree, adjudged the appellant to be ajuvenile delinquent and placed him with the New York State Office of Children and FamilyServices for a period of 18 months, with a minimum placement period of 6 months and withcredit for time served, to run concurrently with the appellant's placement under docket Nos.D-18188-07 and D-26822-07, and (2) an order of the same court entered in the proceedingcommenced under docket No. D-26822-07 and also dated November 4, 2009, which, after ahearing, found that the appellant willfully violated a condition of a term of probation previouslyimposed in an order of disposition dated October 25, 2007, vacated that order of disposition, andplaced the appellant with the New York State Office of Children and Family Services for aperiod of 12 months, with a minimum placement period of 6 months and with credit for timeserved, to run concurrently with the appellant's placement under docket Nos. D-18188-07 andD-22440-09. The appeal from the order of disposition brings up for review the fact-finding orderdated October 7, 2009.
Ordered that the appeal from so much of the second order dated November 4, 2009, as placedthe appellant with the New York State Office of Children and Family Services for a period of 12months is dismissed as academic, without costs or disbursements, as the period of placement hasexpired; and it is further,
Ordered that first order dated November 4, 2009, is affirmed, without costs or disbursements;and it is further,
Ordered that the second order dated November 4, 2009, is affirmed insofar as reviewed,without costs or disbursements.[*2]
The appellant's challenge to the legal sufficiency of theevidence is unpreserved for appellate review (see Matter of James G., 309 AD2d 935[2003]). In any event, viewing the evidence in the light most favorable to the presentment agency(see Matter of David H., 69 NY2d 792, 793 [1987]), we find that it was legally sufficientto establish beyond a reasonable doubt that the appellant committed acts which, if committed byan adult, would have constituted the crimes charged, either personally or as an accessory (seeMatter of Omar G., 38 AD3d 549 [2007]; cf. Penal Law § 20.00). Theevidence was also legally sufficient to disprove the appellant's justification defense beyond areasonable doubt (see Matter of Louis C., 38 AD3d 541, 542 [2007]; Matter ofRosario S., 18 AD3d 563, 564 [2005]). Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see Matter of Hasan C., 59 AD3d617, 617-618 [2009]; cf. CPL 470.15 [5]), we nevertheless accord great deference to theopportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor(see Matter of Daniel R., 51 AD3d 933 [2008]; cf. People v Mateo, 2 NY3d 383[2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record, we are satisfied that the Family Court's findings of fact werenot against the weight of the evidence (see Family Ct Act § 342.2 [2]; Matter ofDarnell C., 66 AD3d 771, 772 [2009]; cf. People v Romero, 7 NY3d 633 [2006]).
Any error committed by the Family Court in failing to draw a negative inference from thepresentment agency's failure to call a certain witness was harmless (see Matter of GabrielleM., 33 AD3d 1005 [2006]).
Inasmuch as one of the acts constituting the basis for the fact-finding order was also the basisfor the Family Court's conclusion that the appellant violated a previously imposed term ofprobation, the second order dated November 4, 2009, which, inter alia, revoked the appellant'sprobation, must be affirmed insofar as reviewed. Dillon, J.P., Santucci, Dickerson and Chambers,JJ., concur.