| Matter of Racheal M. |
| 2013 NY Slip Op 05529 [108 AD3d 770] |
| July 31, 2013 |
| Appellate Division, Second Department |
| In the Matter of Racheal M.,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andJane L. Gordon of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, RachealM., also known as Rachel M., appeals from (1) a fact-finding order of the Family Court,Kings County (Olshansky, J.), dated June 26, 2012, made after a hearing, finding that shecommitted acts which, if committed by an adult, would have constituted the crimes ofattempted assault in the third degree, petit larceny, and criminal possession of stolenproperty in the fifth degree, and (2) an order of disposition of the same court datedAugust 1, 2012, which, upon the fact-finding order and after a dispositional hearing,adjudged her to be a juvenile delinquent, and placed her on probation for a period of 12months.
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that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as the fact-finding order was superseded by the order of disposition and isbrought up for review on the appeal from the order of disposition; and it is further,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 of attempted assaultin the third degree and criminal possession of stolen property in the fifth degree isunpreserved for appellate review (see Matter of Kalexis R., 79 AD3d 755, 756 [2010]; cf.CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable tothe presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]), wefind that it was legally sufficient to establish, beyond a reasonable doubt, that theappellant committed acts, which if committed by an adult, would have constituted thecrimes of attempted assault in the third degree (see Penal Law §§110.00, 120.00) and criminal possession of stolen property in the fifth degree (seePenal Law § 165.40). Moreover, in fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]; cf.CPL 470.15 [5]), we nevertheless accord great deference to the opportunity of thetrier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Jamel C., 92AD3d 782 [2012]; cf. People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]). Upon reviewing the record here, we are satisfied thatthe Family Court's fact-finding determinations were not against the weight of theevidence (see Family Ct Act § 342.2 [2]; Matter of George R., 104AD3d 949, 950 [2013]).[*2]
The Family Court has broad discretion indetermining the appropriate disposition (see Matter of Justin A., 82 AD3d 1219, 1220 [2011]; Matter of Ashley P., 74 AD3d1075, 1076 [2010]). Here, the Family Court providently exercised its discretion inadjudicating the appellant a juvenile delinquent and placing her on probation for a periodof 12 months (see Family Ct Act § 352.2), rather than directing anadjournment in contemplation of dismissal (see Family Ct Act § 315.3).The appellant was not entitled to an adjournment in contemplation of dismissal merelybecause this was her first encounter with the law, or in light of the other mitigatingcircumstances that she cites (seeMatter of Jesus S., 104 AD3d 694, 695 [2013]). The record establishes that theimposition of probation was the least restrictive alternative consistent with the appellant'sbest interests and the need for protection of the community (see Family Ct Act§ 352.2 [2] [a]), particularly in light of, inter alia, the nature of the incident that ledto the appellant's adjudication as a juvenile delinquent and the recommendations made inthe probation report (see Matter of George R., 104 AD3d at 950).
The appellant was not deprived of the effective assistance of counsel (see Matter of Steven L., 86AD3d 613, 614 [2011]). Rivera, J.P., Balkin, Leventhal and Cohen, JJ., concur.