| Matter of Kalexis R. |
| 2011 NY Slip Op 05285 [85 AD3d 927] |
| June 14, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kalexis R., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Kalexis R.appeals from an order of disposition of the Family Court, Queens County (Lubow, J.), dated July8, 2009, which, upon a fact-finding order of the same court dated May 11, 2009, finding that hecommitted acts which, if committed by an adult, would have constituted the crimes of assault inthe second degree and resisting arrest, adjudged him to be a juvenile delinquent and placed himin the custody of the Office of Children and Family Services for a period of 18 months, withcredit for time spent in detention. The appeal from the order of disposition brings up for reviewthe fact-finding order dated May 11, 2009.
Ordered that the order of disposition is reversed, on the facts, without costs or disbursements,the fact-finding order is vacated, the petition is dismissed, and the matter is remitted to theFamily Court, Queens County, for further proceedings pursuant to Family Court Act §375.1.
The appellant was adjudicated a juvenile delinquent on the basis of the Family Court'sfact-finding that he committed acts which, if committed by an adult, would have constituted thecrimes of assault in the second degree (Penal Law § 120.05 [3]) and resisting arrest (PenalLaw § 205.30). The appellant contends that the fact-finding is against the weight of theevidence because the police did not have probable cause to arrest him.
To sustain a charge in a petition that the respondent has committed acts which, if committedby an adult, would have constituted the crime of resisting arrest, the presentment agency mustprove beyond a reasonable doubt that the police had probable cause for the arrest (seePenal Law § 205.30; Matter of Kara M., 242 AD2d 630, 631 [1997]; Matter ofCharles M., 143 AD2d 96 [1988]; cf. People v Peacock, 68 NY2d 675, 677 [1986];People v Lindsey, 52 AD3d527, 529 [2008]). Similarly, to sustain a charge in a petition that a respondent committedacts which, if committed by an adult, would have constituted the crime of assault in the seconddegree against a police officer under Penal Law § 120.05 (3), the presentment agency mustprove beyond a reasonable doubt that the respondent's acts were committed with the intent toprevent the officer from performing a "lawful duty" (Penal Law § 120.05 [3]). A policeofficer effecting an arrest without probable cause is not performing a lawful duty (see Peoplev Lindsey, 52 AD3d at 529-530; People v Greene, 221 AD2d 559, 560 [1995]).[*2]
In evaluating a claim that a fact-finding at a juveniledelinquency proceeding is against the weight of the evidence, we accord great deference to thefactfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor(see Matter of Macye Mc., 82 AD3d892 [2011]; Matter of DarnellC., 66 AD3d 771, 772 [2009]). Here, even accepting the Family Court's credibilitydeterminations in their entirety, we find that its fact-finding cannot be sustained, because theevidence presented did not satisfactorily establish that the police had probable cause to arrest theappellant. While the evidence established that crimes had been committed, the Family Court'sfinding that the evidence established that "[t]he facts and circumstances known to the arrestingofficer would have warranted a reasonable person, who possessed the same expertise as theofficer, to conclude that" the appellant participated in those crimes (Matter of Eric C.,281 AD2d 543, 544 [2001]), was against the weight of the evidence (see Matter of Anthony W., 51 AD3d808, 810 [2008]; Matter of TyroneP., 42 AD3d 170, 175 [2007]). Consequently, the fact-finding order must be vacated, theorder of disposition reversed, and the petition dismissed. Dillon, J.P., Balkin, Belen and Sgroi,JJ., concur.