| Matter of Devin Z. |
| 2012 NY Slip Op 00138 [91 AD3d 1035] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Devin Z., a Person Alleged to be a JuvenileDelinquent. Tioga County Attorney's Office, Respondent; Devin Z.,Appellant. |
—[*1] Christian Root, Tioga County Law Department, Owego, for respondent.
Peters, J.P. Appeal from an order of the Family Court of Tioga County (Sgueglia, J.), enteredMarch 9, 2010, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 3, to adjudicate respondent a juvenile delinquent.
Petitioner commenced this juvenile delinquency proceeding against respondent (born in1995) based upon allegations that he had engaged in sexual contact with the victim (born in2000), his cousin, on multiple occasions beginning in 2007. Following a fact-finding hearing,Family Court found that respondent had committed acts which, if committed by an adult, wouldconstitute the crime of course of sexual conduct against a child in the second degree. Adjudged ajuvenile delinquent, respondent was placed on probation for two years. Respondentappeals.[FN*][*2]
Respondent asserts that Family Court's determination wasnot supported by legally sufficient evidence and was against the weight of the evidence. In thatregard, respondent places great emphasis on various inconsistencies in the victim's testimony andcontends that her uncorroborated accounts as to what transpired are so implausible that hertestimony must be rejected as a matter of law. At the fact-finding hearing, the victim testified thaton numerous occasions when she stayed overnight at respondent's home, respondent would enterthe bedroom where she and her female cousin, respondent's sister, slept and would touch hervaginal area. The victim explained that, when respondent would see the hall light turn on or hearhis parents, he would run out of the room and into his own bedroom. The victim testified furtherthat she did not report respondent's sexual touching, which occurred over a period of more thantwo years, because she did not want to ruin her relationship with her female cousin.
Although there were discrepancies between the victim's testimony and her prior statementconcerning both the number of times respondent had subjected her to sexual contact during therelevant time period and the manner in which respondent effectuated the contact, theseinconsistencies were understandable in light of the victim's young age and "did not relate towhether the described sexual touching occurred repeatedly over that period of time" (People v Weber, 25 AD3d 919,921 [2006], lv denied 6 NY3d 839 [2006]; see People v Beauharnois, 64 AD3d 996, 998-999 [2009], lvdenied 13 NY3d 834 [2009]; Peoplev Nowinski, 36 AD3d 1082, 1084 [2007], lv denied 8 NY3d 989 [2007]; People v Stewart, 20 AD3d 769,770 [2005]). Furthermore, despite the fact that neither the victim's female cousin nor respondent'smother ever observed respondent in the bedroom with the victim, we cannot conclude that thevictim's testimony, when viewed in the context of the other evidence introduced at the hearing,was inherently unbelievable or incredible as a matter of law (see People v Stearns, 72 AD3d 1214, 1216 [2010], lvdenied 15 NY3d 778 [2010]; People v Nowinski, 36 AD3d at 1084; People vWeber, 25 AD3d at 921). Viewed in a light most favorable to petitioner (see Matter of Timothy HH., 41 AD3d913, 914 [2007]), the evidence presented—including the victim's testimony, whichFamily Court found "totally credible"—was sufficient to sustain the charge. Moreover,after independently weighing and considering the evidence and according deference to FamilyCourt's credibility determinations, we are unpersuaded that the determination was contrary to theweight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; Matter of Jared WW., 56 AD3d1009, 1010-1011 [2008]; People v Weber, 25 AD3d at 921; People v Harp, 20 AD3d 672, 673[2005], lv denied 5 NY3d 852 [2005]).
Malone Jr., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.[*3]
Footnote *: Although respondent filed anotice of appeal from only the fact-finding order, which is not appealable as of right (seeFamily Ct Act § 1112 [a]; Matterof Barry H., 24 AD3d 1137, 1139 [2005]), we will treat the notice of appeal as anapplication for leave to appeal and grant the application (see Matter of Jared WW., 56 AD3d 1009, 1010 n [2008];Matter of Jason FF., 224 AD2d 900, 900 [1996]).