| Matter of Justin D. |
| 2014 NY Slip Op 01323 [114 AD3d 941] |
| February 26, 2014 |
| Appellate Division, Second Department |
| In the Matter of Justin D.,Appellant. |
—[*1] Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Julian L. Kalkstein of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, JustinD. appeals from an order of disposition of the Family Court, Kings County (Ambrosio,J.), dated October 24, 2012, which, upon a fact-finding order of the same court datedFebruary 7, 2012, made after a hearing, finding that he committed acts which, ifcommitted by an adult, would have constituted the crimes of attempted criminal sexualact in the first degree, sexual abuse in the first degree, rape in the third degree, attemptedcriminal sexual act in the third degree, sexual misconduct, attempted sexual misconduct,and sexual abuse in the third degree, adjudged him to be a juvenile delinquent and placedhim on probation for a period of 12 months. The appeal from the order of dispositionbrings up for review the fact-finding order.
Ordered that the appeal from so much of the order of disposition as placed theappellant on probation for a period of 12 months is dismissed as academic, without costsor disbursements; and it is further,
Ordered that the order of disposition is modified, on the law, by deleting theprovisions thereof adjudicating the appellant a juvenile delinquent based upon thefinding that he committed acts which, if committed by an adult, would have constitutedthe crimes of attempted sexual misconduct and sexual abuse in the third degree andsubstituting therefor a provision dismissing those counts of the petition; as so modified,the order of disposition is affirmed insofar as reviewed, without costs or disbursements,and the fact-finding order is modified accordingly.
The appeal from so much of the order of disposition as placed the appellant onprobation for a period of 12 months has been rendered academic, as the period ofplacement has expired (seeMatter of Stanley F., 76 AD3d 1067, 1068 [2010]). However, because theremay be collateral consequences resulting from the adjudication of delinquency, theappeal from so much of the order of disposition as adjudicated the appellant a juveniledelinquent, which brings up for review the fact-finding order, has not been renderedacademic (see Family Ct Act § 783; Matter of Dorothy D., 49NY2d 212 [1980]; Matter of Stanley F., 76 AD3d at 1068).
The appellant's challenge to the legal sufficiency of the evidence is unpreserved forappellate review (see Matter ofKalexis R., 79 AD3d 755, 756 [2010]; cf. CPL 470.05 [2]). In anyevent, viewing the evidence in the light most favorable to the presentment agency(see Matter of David H., [*2]69 NY2d 792, 793[1987]), we find that it was legally sufficient to establish, beyond a reasonable doubt, thatthe appellant committed acts, which if committed by an adult, would have constituted thecrimes of attempted criminal sexual act in the first degree (see Penal Law§§ 110.00, 130.50 [1]), sexual abuse in the first degree (see PenalLaw § 130.65 [1]), rape in the third degree (see Penal Law § 130.25[3]), attempted criminal sexual act in the third degree (see Penal Law§§ 110.00, 130.40 [3]), sexual misconduct (see Penal Law §130.20 [1]), attempted sexual misconduct (see Penal Law §§ 110.00,130.20 [2]), and sexual abuse in the third degree (see Penal Law § 130.55).
Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (cf.People v Danielson, 9 NY3d 342, 348 [2007]; CPL 470.15 [5]), we neverthelessaccord great deference to the opportunity of the trier of fact to view the witnesses, hearthe testimony, and observe demeanor (see Matter of Jamel C., 92 AD3d 782 [2012]; cf.People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]).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 ofGeorge R., 104 AD3d 949, 950 [2013]).
However, as the appellant correctly contends, the counts of attempted sexualmisconduct and sexual abuse in the third degree should have been dismissed as inclusoryconcurrent counts of attempted criminal sexual act in the third degree and sexual abuse inthe first degree, respectively (cf. CPL 300.30 [4]; 300.40 [3] [b]; see Matter of William A., 90AD3d 651, 652 [2011]; cf. People v Blackwell, 177 AD2d 952 [1991]).Although these contentions are unpreserved for appellate review, preservation of them"is unnecessary to obtain appropriate relief" (People v Mingo, 66 AD3d 1043, 1044 [2009]; seePeople v Hammond, 220 AD2d 684, 685 [1995]).
The appellant's remaining contentions are academic in light of our determination orwithout merit. Skelos, J.P., Chambers, Hall and Miller, JJ., concur.