| Matter of George R. |
| 2013 NY Slip Op 02079 [104 AD3d 949] |
| March 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of George R., a Person Alleged to be aJuvenile Delinquent, Appellant. |
—[*1] David L. Darwin, County Attorney, Goshen, N.Y. (Allan Y. Drian of counsel), forrespondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, GeorgeR. appeals from (1) a fact-finding order of the Family Court, Orange County (Kiedaisch,J.), dated September 12, 2011, made after a hearing, finding that he committed actswhich, if committed by an adult, would have constituted the crime of sexual abuse in thefirst degree, and (2) an order of disposition of the same court dated December 23, 2011,which, upon the fact-finding order and after a dispositional hearing, adjudged him to be ajuvenile delinquent and placed him on probation for a period of two years under statedterms and conditions, including directing him to undergo sex offender-specific therapy.
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that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition and isbrought up for review on the appeal from the order of disposition; and it is further,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 affirmed, without costs or disbursements.
The appellant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see Matter ofDanasia Mc., 94 AD3d 1122, 1123 [2012]; Matter of Kalexis R., 79 AD3d 755, 756 [2010]; Matter of Anthony R., 43AD3d 939, 939-940 [2007]; cf. CPL 470.05 [2]). In any event, viewing theevidence at the fact-finding hearing in the light most favorable to the presentment agency(see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Kemar G., 72 AD3d965 [2010]; Matter ofSummer D., 67 AD3d 1008, 1009 [2009]), we find that it was legally sufficientto establish, beyond a reasonable doubt, that the appellant committed acts, which, ifcommitted by an adult, would have constituted the crime of sexual abuse in the firstdegree (see Penal Law § 130.65 [1]; see generally People v Jessup, 90 AD3d 782, 783-784[2011]). Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (seePeople v Danielson, 9 NY3d 342, 348 [2007]; cf. CPL 470.15 [5]), wenevertheless accord great deference to the opportunity of the trier of fact to view thewitnesses, hear the testimony, and observe demeanor (see Matter of Clarissa S., 83AD3d 1083, 1084 [2011]; cf. People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the Family Court's fact-findingdeterminations were not against the weight of the evidence (see Family Ct Act§ 342.2 [2]; Matter ofCharles S., 41 AD3d 484, 486 [2007]).
The Family Court has broad discretion in entering dispositional orders (see Matter [*2]of Antoine H., 81 AD3d 646 [2011]; Matter of Gustav D., 79 AD3d868, 869 [2010]; Matter ofAbel R., 77 AD3d 758 [2010]). "That discretion includes the authority toimpose conditions of probation that are reasonably related to rehabilitation" (Matter of Ashley D., 55 AD3d605, 606 [2008]; see Family Ct Act § 353.2 [2] [h]; cf. PenalLaw § 65.10 [2], [5]; People v Letterlough, 86 NY2d 259, 263-264[1995]). Here, the disposition was appropriate in light of, inter alia, the seriousness of theincident that led to the appellant's adjudication as a juvenile delinquent, as well as therecommendations made in the probation report and the forensic mental health evaluationreport (see Matter of Gustav D., 79 AD3d at 869; Matter of Eunique B., 73AD3d 764 [2010]; Matterof Jonathan F., 72 AD3d 963, 964 [2010]; Matter of Javed K., 57 AD3d 899, 900 [2008]; Matter of Julissa R., 30 AD3d526, 528 [2006]).
Furthermore, the failure of the appellant's counsel to object to the admission of theforensic mental health evaluation insofar as it relied on the results of the AbelAssessment for Sexual Interest (hereinafter the Abel Assessment) did not constituteineffective assistance of counsel. The forensic mental health evaluator relied on the AbelAssessment only with respect to his finding that it provided evidence that the appellanthad been "deceitful and dishonest in his responses." The evaluator determined that thisfinding was corroborated by the appellant's Social Desirability Score, the reliability ofwhich the appellant did not contest before the Family Court and does not contest now onappeal. Since the finding of the forensic evaluator based upon the Abel Assessment wascorroborated, counsel was not ineffective for failing to challenge the admissibility of theresults of the Abel Assessment, irrespective of the merits of this particular assessmenttool (see generally People vYagudayev, 91 AD3d 888, 890 [2012]). Contrary to the appellant's contention,the forensic mental health evaluation was properly admitted into evidence and consideredby the Family Court for the purpose of making its dispositional order (see Matter ofEunique B., 73 AD3d at 764; Matter of Julissa R., 30 AD3d at 528; cf.State v Victor O., 301 Conn 163, 175-176, 20 A3d 669, 679 [2011], certdenied 565 US —, 132 S Ct 583 [2011]). Angiolillo, J.P., Dickerson,Chambers and Lott, JJ., concur.