| Matter of Shamik M. |
| 2014 NY Slip Op 03842 [117 AD3d 1056] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Shamik M., a Person Alleged to be aJuvenile Delinquent, Appellant. |
Scott A. Rosenberg, New York, N.Y. (Tamara A. Steckler and Raymond E. Rogersof counsel), for appellant.
Zachary W. Carter, 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, ShamikM. appeals from an order of disposition of the Family Court, Kings County (Ambrosio,J.), dated April 1, 2013, which, upon an order of fact-finding of the same court(Toussaint, J.) dated November 30, 2012, made after a hearing, finding that hecommitted acts which, if committed by an adult, would have constituted the crimes ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the fourth degree, adjudged him to be a juvenile delinquent and placed him onprobation until his 18th birthday. The appeal brings up for review the fact-finding orderdated November 30, 2012.
Ordered that the appeal from so much of the order of disposition as placed theappellant on probation until his 18th birthday is dismissed as academic, without costs ordisbursements; and it is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the facts,without costs or disbursements, the fact-finding order is vacated, the petition isdismissed, and the matter is remitted to the Family Court, Kings County, for furtherproceedings pursuant to Family Court Act § 375.1.
The appeal from so much of the order of disposition as placed the appellant onprobation until his 18th birthday has been rendered academic, as the period of placementhas expired (see Matter of JustinD., 114 AD3d 941 [2014]; Matter of Kaseem R., 113 AD3d 779, 779-780 [2014]; Matter of Stanley F., 76 AD3d1067, 1068 [2010]). However, since there may be collateral consequences resultingfrom the adjudication of delinquency, the appeal from so much of the order ofdisposition as adjudicated the appellant a juvenile delinquent, and which brings up forreview the fact-finding order, has not been rendered academic (see Family Ct Act§ 783; Matter of Dorothy D., 49 NY2d 212 [1980]).
The appellant was adjudicated a juvenile delinquent on the basis of the FamilyCourt's finding that he committed acts which, if committed by an adult, would haveconstituted the [*2]crimes of criminal possession of aweapon in the second degree (Penal Law § 265.03 [3]) and criminalpossession of a weapon in the fourth degree (Penal Law § 265.01 [1]). Theappellant contends that the fact-finding is against the weight of the evidence.
In evaluating a contention that the evidence supporting a fact-finding at a juveniledelinquency proceeding is against the weight of the evidence, this Court first determineswhether a different fact-finding would not have been unreasonable. If, based on all of thecredible evidence, a different finding would not have been unreasonable, this Court willthen "weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citations omitted];see Matter of Danielle B.,94 AD3d 757, 758 [2012]; Matter of Kalexis R., 85 AD3d 927, 928-929 [2011]; Matter of Quamel D., 78 AD3d1050, 1051-1052 [2010]). In performing our weight of the evidence review, weaccord great deference to the opportunity of the factfinder to view the witnesses, heartheir testimony, and observe their demeanor (see Matter of Justin D., 114 AD3d 941 [2014]; Matter of Travis A., 105 AD3d1041, 1041-1042 [2013]; Matter of Danielle B., 94 AD3d at 758; Matterof Kalexis R., 85 AD3d at 928-929; Matter of Macye Mc., 82 AD3d 892, 894 [2011]).
Here, two police officers testified at the fact-finding hearing that, on the night ofApril 9, 2011, they observed the appellant remove a firearm from his waistband, toss iton the ground, and flee the scene. However, the credibility of one of those officers,Police Officer Michael Burbridge, was seriously called into question by his testimony oncross-examination. On cross-examination, Officer Burbridge admitted that a jury in afederal civil lawsuit found him liable for, inter alia, false arrest and maliciousprosecution. That case was commenced against Officer Burbridge in connection with anarrest he made in 2008, where Officer Burbridge claimed that he observed the manremove a gun from his waistband and throw it into the street. The man contended thatOfficer Burbridge and the other officer involved were lying, and that it was hiscompanion who discarded the gun (see Marshall v Randall, 719 F3d 113 [2d Cir2013]; Marshall v City of New York, 2011 US Dist LEXIS 138038 [ED NY,Nov. 30, 2011, No. 10-CV-2714]). The appellant's counsel also elicited testimony fromOfficer Burbridge detailing his Internal Affairs Bureau complaint history.
In addition, the appellant presented evidence at the fact-finding hearing indicatingthat another individual, rather than the appellant, threw the weapon recovered by OfficerBurbridge. This evidence included the appellant's own testimony and a radio run thatcorroborated the appellant's version of events. Moreover, the evidence demonstrates thatboth police officers who testified on behalf of the presentment agency only observed theindividual who possessed the firearm for a few moments before that individual fled thescene. Based on the foregoing, we find that the Family Court's fact-finding was againstthe weight of the evidence.
Accordingly, we reverse the order of disposition insofar as reviewed, vacate thefact-finding order, dismiss the petition, and remit the matter to the Family Court, KingsCounty, for further proceedings pursuant to Family Court Act § 375.1.Dillon, J.P., Leventhal, Sgroi and Maltese, JJ., concur.