| Matter of Clarence D. |
| 2011 NY Slip Op 07313 [88 AD3d 1074] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Clarence D., Alleged to be a Juvenile Delinquent.Columbia County Attorney's Office, Respondent; Clarence D.,Appellant. |
—[*1] Daniel Tuczinski, County Attorney, Hudson (Clarissa D. Garvey of counsel), forrespondent.
Rose, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.), enteredJanuary 21, 2009, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 3, to adjudicate respondent a juvenile delinquent.
Petitioner commenced this juvenile delinquency proceeding based upon charges stemmingfrom an incident between respondent and the mother of his child. After a fact-finding hearing,Family Court found that respondent had committed acts which, if committed by an adult, wouldconstitute the crimes of attempted criminal sexual act in the first degree, attempted assault in thethird degree, criminal mischief in the fourth degree and endangering the welfare of a child.Following a dispositional hearing, respondent was adjudicated a juvenile delinquent and placedin the custody of the Columbia County Commissioner of Social Services for a period of 12months.
There is no merit to respondent's challenge to the facial sufficiency of the petition, as it issupported by the victim's sworn deposition establishing each element of the crimes charged(see Family Ct Act § 311.2 [2]). Contrary to respondent's contention, hisinculpatory statements contained in the victim's supporting deposition were based upon herpersonal knowledge and, therefore, they constitute nonhearsay allegations within the meaning ofFamily Ct Act § 311.2 (3) (see Matter of Todd Z., 295 AD2d 652, 652-653 [2002];Matter of Christopher P., 260 AD2d 212, 213 [1999]; Matter of Rodney J., 108AD2d 307, 311 [1985]).
Respondent's challenge to the sufficiency of the evidence at the fact-finding hearing is alsowithout merit. The victim testified that, among other things, respondent repeatedly demandedoral sex from her while grabbing her hair, pulling chunks of it out and restraining her on the bedby placing his leg over her. Viewed in a light most favorable to petitioner (see Matter of Brooke II., 45 AD3d1234, 1234 [2007]; Matter ofTimothy HH., 41 AD3d 913, 914 [2007]), this testimony—which Family Courtfound to be credible—supports the finding that respondent attempted to forcibly engage inoral sexual conduct with the victim (see Penal Law §§ 110.00, 130.50 [1]).The victim also testified that, after she was able to get off respondent's bed, he threw things ather, forcibly pulled and pushed her, and kicked a door into her leg, causing bruises. Photographsof her bruises were admitted into evidence, supporting the finding that respondent committedacts constituting the crime of attempted assault in the third degree (see Penal Law§§ 110.00, 120.00 [1]). The victim's testimony that respondent pulled on her shirt asthough he wanted to rip it, and then did rip the shirt and break her underwire bra, providessufficient support for the charge of criminal mischief in the fourth degree (see Penal Law§ 145.00 [1]). The testimony and photographs introduced at the hearing also revealed thatthe physical altercation between respondent and the victim occurred in the cramped confines ofrespondent's small bedroom while the parties' four-month-old child was sleeping a few feet awayfrom the bed on an air mattress on the floor, thus also supporting the finding that respondentknowingly acted in a manner that was likely to cause physical injury to the child (seePenal Law § 260.10 [1]). Although respondent testified to a different version of events,Family Court determined that he was not credible and, giving due deference to thatdetermination, we decline to disturb the court's finding as against the weight of the evidence (see Matter of Gordon B., 83 AD3d1164, 1167 [2011], lv denied 17 NY3d 710 [2011]; Matter of Clifton NN., 64 AD3d903, 905 [2009]; Matter of Brooke II., 45 AD3d at 1235).
Given the nature of the incident and the fact that it occurred only days after respondent hadbeen released from custody based on a prior finding of delinquency in connection with an assault,Family Court properly concluded that respondent required "supervision, treatment orconfinement" (Family Ct Act § 352.1 [1]; see Matter of Orazio A., 81 AD3d 1104, 1106 [2011]; Matter of Melissa VV., 26 AD3d682, 683 [2006]). Respondent also challenges his placement, but it has been rendered mootby the expiration of the dispositional order (see Matter of Clifton NN., 64 AD3d at 905;Matter of Brett W., 62 AD3d1050, 1051 [2009]; Matter ofKashayla L., 56 AD3d 962, 962-963 [2008]). We have reviewed his remainingcontentions and found them to be without merit.
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.