| Matter of Jose T. |
| 2015 NY Slip Op 02978 [127 AD3d 875] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jose T., a Person alleged to be aJuvenile Delinquent, Appellant. |
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Raymond E.Rogers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgowand Holly Cooper of counsel), for respondent.
Appeal from an order of disposition of the Family Court, Kings County (Emily M.Olshansky, J.), dated November 26, 2013. The order of disposition adjudicated Jose T. ajuvenile delinquent and placed him in the custody of the Commissioner of SocialServices of the City of New York for a period of 18 months. The appeal brings up forreview an order of fact-finding of that court dated October 31, 2013, which, after ahearing, found that Jose T. had committed acts which, if committed by an adult, wouldhave constituted the crimes of attempted robbery in the second degree, attempted grandlarceny in the fourth degree, and assault in the third degree, and the denial, after ahearing, of that branch of the appellant's omnibus motion which was to suppressidentification evidence.
Ordered that the order of disposition is modified, on the law, by deleting theprovision thereof adjudicating the appellant a juvenile delinquent based upon the findingthat he committed an act which, if committed by an adult, would have constituted thecrime of assault in the third degree, and substituting therefor a provision adjudicating theappellant a juvenile delinquent based upon a finding that he committed an act which, ifcommitted by an adult, would have constituted the crime of attempted assault in the thirddegree; as so modified, the order of disposition is affirmed, without costs ordisbursements, and the order of fact-finding is modified accordingly.
Contrary to the appellant's contention, the evidence presented at the suppressionhearing demonstrated that the police officers who detained him had reasonable suspicionto believe that he had committed a crime (see People v De Bour, 40 NY2d 210,223 [1976]; People vLaviscount, 116 AD3d 976, 978 [2014]). In particular, the evidencedemonstrated that the officers were aware, from a police radio call, that a specific crimehad been committed by at least two perpetrators. Upon arriving at the scene one minutelater, the officers were told by individuals in the company of the complainant thedirection in which the perpetrators had gone, along with a more specific description ofthe appellant's companion. Upon noticing the officers, the appellant and his companionfled. Under these circumstances, the officers were justified in stopping and detaining theappellant and his companion (see Matter of Jakwon R., 110 AD3d 723 [2013]; People v Madrid, 52 AD3d530 [2008]).
[*2] Further, under thecircumstances, the fact that a police officer briefly displayed a weapon when theappellant and his companion fled, and used handcuffs to detain the appellant for thepurpose of a prompt showup identification by the complainant, who was approximately30 feet away from the appellant when he identified him as one of the perpetrators, did nottransform the detention into a full-blown arrest (see People v Allen, 73 NY2d378, 380 [1989]; People vBarnes, 4 AD3d 433 [2004]; People v Worthy, 308 AD2d 555 [2003];People v Moore, 296 AD2d 426 [2002]; People v Evans, 237 AD2d 458,459 [1997]).
With respect to the appellant's contention that the showup identification procedurewas unduly suggestive, the credibility determinations of a hearing court are entitled togreat deference on appeal and will not be disturbed unless clearly unsupported by therecord (see People v Rivera,59 AD3d 467 [2009]; People v Graham, 54 AD3d 1056 [2008]). Here, thehearing court's decision to credit the police officers' testimony was supported by therecord. Further, the showup identification procedure, conducted in close spatial andtemporal proximity to the crime, was not unduly suggestive (see People v Peterson, 110AD3d 1103, 1104 [2013]; People v Calero, 105 AD3d 864, 865 [2013]; People vRivera, 59 AD3d at 467; People v Jay, 41 AD3d 615 [2007]; People v Samuels, 39 AD3d569 [2007]).
As the presentment agency correctly concedes, the Family Court erroneously set forthin its order of disposition and order of fact-finding that it had found that the appellantcommitted an act which, if committed by an adult, would have constituted the crime ofassault in the third degree. As the transcript of the fact-finding hearing makes clear, theFamily Court expressly found that the evidence was insufficient to establish that theappellant committed an act which, if committed by an adult, would have constituted thecrime of assault in the third degree, but concluded, instead, that the evidencedemonstrated that the appellant committed an act, which, if committed by an adult, wouldhave constituted the crime of attempted assault in the third degree, as a lesser-includedoffense. Accordingly, as both parties request, we modify the orders of disposition andfact-finding so as to reflect the Family Court's actual finding of fact (see Matter of John F., 12AD3d 509, 510 [2004]).
Viewing the evidence in the light most favorable to the presentment agency (seeMatter of David H., 69 NY2d 792, 793 [1987]), 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 crimes of attempted robbery in thesecond degree, attempted grand larceny in the fourth degree, and attempted assault in thethird degree. Moreover, in fulfilling our responsibility to conduct an independent reviewof the weight of the evidence (see Matter of Chakelton M., 111 AD3d 732 [2013];cf. CPL 470.15 [5]), we nevertheless accord great deference to the opportunity ofthe trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Jamel C., 92AD3d 782, 782-783 [2012]). 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 Jamel C.,92 AD3d at 783). Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur.