| Matter of William A. |
| 2011 NY Slip Op 08935 [90 AD3d 651] |
| December 6, 2011 |
| Appellate Division, Second Department |
| In the Matter of William A., Jr., a Person Alleged to be a JuvenileDelinquent, Appellant. |
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James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Victor A. Civitillo of counsel),for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, William A., Jr.,appeals from (1) a fact-finding order of the Family Court, Dutchess County (Forman, J.), datedJune 30, 2010, which, after a hearing, found that he committed acts which, if committed by anadult, would have constituted the crimes of sexual abuse in the first degree, sexual abuse in thesecond degree, sexual abuse in the third degree, and course of sexual conduct in the seconddegree, and (2) an order of disposition of the same court dated October 19, 2010, which, upon thefact-finding order and after a dispositional hearing, adjudged him to be a juvenile delinquent andplaced him on probation for a period of 24 months.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition and isbrought up for review on the appeal from the order of disposition; and it is further,
Ordered that the order of disposition is modified, on the law, by deleting the provisionsthereof adjudicating the appellant a juvenile delinquent based upon the finding that he committedacts which, if committed by an adult, would have constituted the crimes of sexual abuse in thesecond degree and sexual abuse in the third degree, and substituting therefor a provisiondismissing those counts of the petition; as so modified, the order of disposition is affirmed,without costs or disbursements, and the fact-finding order is modified accordingly.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see Matter of Steven L.,86 AD3d 613, 614 [2011], lv denied 17 NY3d 714 [2011]; cf. CPL 470.15[5]; People v Danielson, 9 NY3d342 [2007]), we nevertheless accord great deference to the opportunity of the trier of fact toview the witnesses, hear the testimony, and observe demeanor (see Matter of Steven L.,86 AD3d at 614; cf. People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the Family Court's fact-finding determination with respect to thecounts of sexual abuse in the first degree and course of sexual conduct in the second degree wasnot against the weight of the evidence (see Family Ct Act § 342.2 [2]; cf. People v Romero, 7 NY3d 633[2006]).[*2]
As the presentment agency correctly concedes, the countsof sexual abuse in the second degree and sexual abuse in the third degree should have beendismissed as lesser-included offenses of sexual abuse in the first degree (see CPL 1.20[37]; 300.40 [3] [b]; Matter of KenyettaF., 49 AD3d 540, 541 [2008]; Matter of Jaleel H., 36 AD3d 808, 809-810 [2007]; Matter ofEdward S., 80 AD2d 585, 586 [1981]). Skelos, J.P., Hall, Lott and Cohen, JJ., concur.