| Matter of Devon A. |
| 2010 NY Slip Op 08935 [78 AD3d 1171] |
| November 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Devon A., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen McGrath and ElinaDruker 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 January 27,2010, which, upon a fact-finding order of the same court dated December 11, 2008, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of attempted robbery in the second degree, attempted assault in the seconddegree, attempted assault in the third degree, and attempted grand larceny in the fourth degree,adjudged the appellant to be a juvenile delinquent and placed him on enhanced supervisionprobation for a period of 12 months, to include 60 hours of community service. The appealbrings up for review the fact-finding order dated December 11, 2008.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The presentment agency filed a juvenile delinquency petition dated May 24, 2007, whichcharged the appellant and his brother with having committed acts on April 22, 2007, which, ifcommitted by an adult, would have constituted the crimes of, among other things, attemptedrobbery in the second and third degrees, attempted grand larceny in the fourth degree, andattempted assault in the second and third degrees.
The petition was supported with the sworn statement of a named undercover police officerwho asserted, inter alia, that on April 22, 2007 at 12:47 a.m., at the intersection of Redfern andMott Avenues in Queens, he observed the subjects of the petition and an adult male punch, kick,and attempt to rob a male victim, causing him to fall to the ground, and to continue the attackwhile the victim was lying on the ground. The victim sustained an abrasion under his eye, whichwas bleeding.
Contrary to the appellant's contention, the officer's identification of the appellant as one ofthe perpetrators "occurred at a place and time sufficiently connected and contemporaneous to thearrest itself as to constitute the ordinary and proper completion of an integral police procedure"(People v Wharton, 74 NY2d 921, 922-923 [1989]). Moreover, "[t]he risk of unduesuggestiveness is obviated" since the officer's "observation of the [appellant]" during thecommission of the crimes, within very close proximity and without obstructions, and hisidentification of the appellant within minutes, at the scene, was "so clear that the identificationcould not be mistaken" (People v Boyer, 6 NY3d 427, 432 [2006]). Accordingly, thenotice [*2]and hearing requirements of CPL 710.30 wereinapplicable (id.; cf. People v DeJesus, 19 AD3d 705 [2005]; People vPolk, 284 AD2d 416 [2001]).
The Family Court properly denied the appellant's request for a negative inference to be drawnas a result of the complainant's failure to testify. Despite learning on October 18, 2007, that thepresentment agency would not be calling the complainant as a witness, the appellant failed torequest that the Family Court draw a negative inference until October 3, 2008, after both sideshad rested and the presentment agency had completed its case on rebuttal. Thus, the appellant'srequest was untimely (see People v Sealy, 35 AD3d 510 [2006]; People v Breen,292 AD2d 459 [2002]; People v Woods, 275 AD2d 332 [2000]; People vWoodford, 200 AD2d 644 [1994]).
Viewing the evidence in the light most favorable to the presentment agency (see Matterof David H., 69 NY2d 792, 793 [1987]; Matter of Ashley P., 74 AD3d 1075,1075-1076 [2010]; Matter of Eddie J., 68 AD3d 870 [2009]; cf. People v Contes,60 NY2d 620, 621 [1983]), we find it was legally sufficient to support the finding that theappellant engaged in conduct which, if committed by an adult, would have constituted the crimeof attempted robbery in the second degree, attempted assault in the second degree, attemptedassault in the third degree, and attempted grand larceny in the fourth degree. Moreover, inconducting an independent review of the weight of the evidence (cf. CPL 470.15 [5];People v Danielson, 9 NY3d 342 [2007]), we are satisfied that the Family Court'sfindings of fact were not against the weight of the evidence (see Matter of Robert A., 57AD3d 770 [2008]; Matter of Jennifer B., 45 AD3d 589 [2007]; Matter of JonathanA., 36 AD3d 697 [2007]; Matter of Willie W., 32 AD3d 479 [2006]; Matter ofFelix D., 30 AD3d 598 [2006]). Prudenti, P.J., Florio, Belen and Austin, JJ., concur.