| Matter of Danielle B. |
| 2012 NY Slip Op 02489 [94 AD3d 757] |
| April 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Danielle B., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andEllen Ravitch 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 August 2,2011, which, upon a fact-finding order of the same court dated June 23, 2011, made after ahearing, finding that the appellant committed acts, which, if committed by an adult, would haveconstituted the crime of prostitution, adjudged her to be a juvenile delinquent and placed her inthe custody of the New York State Office of Children and Family Services for a period of 12months with credit for time spent in detention. The appeal brings up for review the fact-findingorder dated June 23, 2011.
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 Family Court found that the appellant, who, at the club where she worked as a dancer,allegedly agreed to perform oral sex on an undercover police officer, committed acts which, ifcommitted by an adult, would have constituted the crime of prostitution (see Penal Law§ 230.00). On appeal, the appellant contends that the evidence was legally insufficient tosupport the fact-finding and that the fact-finding is against the weight of the evidence. Wedisagree with her first contention, but we agree with her second.
To sustain a charge in a petition that a juvenile has committed acts which, if committed by anadult, would have constituted the crime of prostitution, the presentment agency must provebeyond a reasonable doubt that the juvenile has "engage[d] or agree[d] or offer[ed] to engage insexual conduct with another person in return for a fee" (Penal Law § 230.00). When thepresentment agency's case is based on an offer or agreement, rather than the completed act, theremust be proof that the juvenile had the intent to follow through on the offer or agreement (seePeople v A.S., 179 Misc 2d 569, 571 [1998]; cf. Donnino, Practice Commentaries,McKinney's Cons Laws of NY, Book 39, Penal Law art 220, at 22 [regarding necessary proof onoffers or agreements to sell controlled substances]; but see People v Polianskaia, 189Misc 2d 237, 242 [2001]).
The evidence supporting a fact-finding in a juvenile delinquency proceeding is legallysufficient if, viewing that evidence in the light most favorable to the presentment agency, anyrational trier of fact could have found the appellant's commission of all the elements of thecharged crimes beyond a reasonable doubt (see Matter of Imani Mc., 78 AD3d 705, 706 [2010]; Matter of Brooklyn [*2]B., 77 AD3d 934, 935 [2010]). Here, the evidence waslegally sufficient to establish the elements of prostitution (see People v A.S., 179 Misc 2dat 571).
In evaluating a contention that the evidence supporting a fact-finding at a juveniledelinquency proceeding is against the weight of the evidence, a court must first determinewhether a different fact-finding would not have been unreasonable. If the court determines that adifferent finding would not have been unreasonable, it must then "weigh the relative probativeforce of conflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony . . . If it appears that the trier of fact has failed to give theevidence the weight it should be accorded, then the appellate court may set aside the verdict"(People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citationsomitted]; see Matter of Kalexis R.,85 AD3d 927, 928-929 [2011]; Matter of Quamel D., 78 AD3d 1050, 1051-1052 [2010]; cf. People v Delamota, 18 NY3d107, 116-117 [2011]). Nevertheless, in performing our weight of the evidence review, thisCourt accords great deference to the factfinder's opportunity to view the witnesses, hear theirtestimony, and observe their demeanor (see Matter of Kalexis R., 85 AD3d at 928-929;Matter of Macye Mc., 82 AD3d892 [2011]; Matter of DarnellC., 66 AD3d 771, 772 [2009]).
Here, even accepting the Family Court's credibility determination in its entirety, we find thatany conclusion that the appellant intended to follow through on the alleged agreement wasagainst the weight of the evidence. The officer testified that he told the appellant, in effect, thathe wanted the appellant to engage in oral sex with him and that he had $100. In response, theappellant said "OK," but that it would have to be after she finished her shift at work. Theappellant did not inform the officer as to when her shift ended, and they did not agree on whereto meet. Moreover, the officer remained in the club for more than two hours after theirconversation ended and, despite the appellant's presence as well, they never spoke again, andthere is no evidence that the appellant otherwise communicated an intent to meet him after workduring that period. Under these circumstances, although the evidence was legally sufficient, ourweighing of the strength of the conflicting inferences convinces us that the fact-finding wasagainst the weight of the evidence (see Matter of Kalexis R., 85 AD3d at 928-929).Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur.