| Matter of Jesse Z. |
| 2014 NY Slip Op 02358 [116 AD3d 1105] |
| April 3, 2014 |
| Appellate Division, Third Department |
| In the Matter of Jesse Z., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] David E. LaPlant, Franklin County Department of Social Services, Malone, forrespondent.
Stein, J. Appeal from an order of the Family Court of Franklin County (Main Jr., J.),entered September 21, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.
Petitioner commenced this juvenile delinquency proceeding against respondent (bornin 1996) based upon allegations that he lured the victim—a 14-year-old femaleclassmate—to a back stairway in their school, where he put his arm around thevictim's neck and caused her to lose consciousness. Following a fact-finding hearing,Family Court found that respondent had committed acts which, if committed by an adult,would constitute the crime of strangulation in the second degree. Respondent wasadjudicated a juvenile delinquent and, after a dispositional hearing, was placed onprobation for 24 months. Respondent now appeals, and we affirm.
Respondent asserts that Family Court's determination was not supported by legallysufficient evidence and was against the weight of the evidence. A person is guilty ofstrangulation in the second degree when he or she (1) applies pressure on the throat orneck of another person or blocks the nose or mouth of such person, (2) with the "intent toimpede the normal breathing or circulation of the blood of [such] person" (Penal Law§ 121.11) and (3)[*2]"causes stupor, loss ofconsciousness for any period of time, or any other physical injury or impairment" (PenalLaw § 121.12; see Peoplev Carte, 113 AD3d 191, 193 [2013]; People v White, 100 AD3d 1397, 1398-1399 [2012]).Intent to impede a victim's breathing may be inferred from the perpetrator's actions andthe surrounding circumstances (see People v Carte, 113 AD3d at 195; People v Figueroa, 40 Misc 3d1010, 1019 [2013]). Here, respondent argues that his intent to impede the victim'sbreathing was not proven beyond a reasonable doubt. We disagree.
Certain facts regarding the incident are undisputed. Respondent and the victim werestudents at the same high school and had known each other for years, but were notfriends. On the day of the incident, they were walking up an infrequently used stairwayleading to the boys' locker room and the gymnasium, the door to which respondent hadopened for the victim from the inside. Near the top of the stairway, while respondent wasbehind the victim, he put his arm around her neck and applied pressure, after which thevictim collapsed and appeared to lose consciousness. When she regained consciousness,respondent had his hand over the victim's mouth and she became upset, slappedrespondent, cursed at him and ran out of the stairway.
Beyond that, the victim's version of the incident diverges from that of respondent.The victim testified that, the previous school year, she had declined respondent'sinvitation to go out on a date with him. In addition, respondent had previouslyapproached her and told her that another student at their school named Cole had takencompromising photographs of her, made copies of them and placed them somewhere inthe school. According to the victim, on the day of the incident, she entered the backstairway with respondent because he had just told her that it led to the location of thephotos. As they got to the top of the stairs, respondent put his arm around her neck andsqueezed her neck tightly, until she lost consciousness. While respondent was applyingpressure to her neck, he covered her mouth with his hand. When the victim regainedconsciousness, she was in a "lying position," and respondent still had his hand over hermouth and his arm around her neck. He told her to "stop moving" and that he did not"want to hurt [her]," but that Cole "had him do it." The victim, was "freaking out,"slapped respondent across the face, picked up one of her shoes, which had fallen offduring the incident, and ran into the gymnasium, where she told two other students whathad occurred. One of the students testified that he saw the victim coming from thedirection of the boys' locker room, she was sobbing, somewhat hysterical, had rednessaround her neck and chest and was holding one shoe in her hand. The victim told himthat another student had lured her into a back hallway with information about nakedphotos and then grabbed her by the neck.
Peter Glad, a police officer, testified that respondent initially denied knowing whythe police were at the school and that, upon being taken into custody, also denied anyinvolvement in the incident, but eventually admitted that he had put the victim in aheadlock and demonstrated how he did so. In his testimony, respondent admitted that heput his arm around the victim's neck, but denied knowing anything about inappropriatephotos of the victim and claimed that he went into the stairway with her because sheasked him to show her where it led. Although there was video surveillance indicatingotherwise, respondent denied having any significant conversation with the victim beforethey entered the stairwell. Respondent also claimed that he was just "horsing around"when he put his arm around the victim and that, when her legs gave out, he got scared.According to respondent, the incident transpired in 10 to 15 seconds, he put "almost nopressure on [the victim's neck]," he released her very quickly, he was joking around andhe never meant to hurt or choke her. He also claimed that he only put his hand over hermouth after she regained consciousness in order to keep her quiet so that he couldexplain what [*3]happened.
Family Court concluded that petitioner established beyond a reasonable doubt thatrespondent applied pressure on the victim's throat and neck and intended to impede hernormal breathing, as a result of which the victim lost consciousness. Significantly, inreaching this conclusion, Family Court indicated that it found portions of respondent'stestimony to be "incredible and awfully fool hardy." Although the victim's testimonyconflicted with respondent's and there were no other eyewitnesses to the incident, thevictim's testimony was not inherently incredible (see Matter of Devin Z., 91 AD3d 1035, 1036 [2012]).Considering the totality of the circumstances—including, among other things, thatrespondent led the victim to a secluded stairwell on the faulty premise that compromisingphotos of the victim were located there—when we view the evidence in a lightmost favorable to petitioner (seeMatter of Timothy HH., 41 AD3d 913, 914 [2007]), we conclude that theevidence presented was legally sufficient to establish that respondent's "consciousobjective" (Penal Law § 15.05 [1]) in putting his arm around the victim's neck wasto impede her normal breathing (see Penal Law §§ 121.11, 121.12;Matter of Clarence D., 88AD3d 1074, 1074 [2011]; Matter of Anthony E., 82 AD3d 1544, 1544-1545 [2011];Matter of Brittenie K., 50AD3d 1203, 1205 [2008]; Matter of Shane EE., 48 AD3d 946, 947 [2008]; Matter of Brooke II., 45 AD3d1234, 1234 [2007]; Matter of Jeremy R., 266 AD2d 745, 746 [1999]).Moreover, while a different determination would not have been unreasonable, when weview the trial evidence in a neutral light, along with the rational inferences to be drawntherefrom, and defer to Family Court's credibility assessments, that court's finding thatrespondent committed acts which, if committed by an adult, would constitute the crimeof strangulation in the second degree is not against the weight of the evidence (seeMatter of Devin Z., 91 AD3d at 1036; Matter of Clarence D., 88 AD3d at1075; Matter of Gordon B.,83 AD3d 1164, 1166 [2011], lv denied 17 NY3d 710 [2011]).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.