| Matter of Shannel P. |
| 2016 NY Slip Op 01853 [137 AD3d 1039] |
| March 16, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Shannel P., a Person Alleged to be aJuvenile Delinquent, Appellant. |
Law Offices of Douglas G. Rankin, P.C., Brooklyn, NY, for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgowand Rachel Glantz of counsel), for respondent.
Appeals from (1) an order of disposition of the Family Court, Queens County (JohnM. Hunt, J.), dated April 29, 2014, and (2) an order of that court dated April 28, 2014.The order of disposition adjudicated Shannel P. a juvenile delinquent and placed her onprobation for a period of 12 months. The appeal from the order of disposition brings upfor review an order of fact-finding of that court dated January 30, 2014, which, after ahearing, found that she had committed acts which, if committed by an adult, would haveconstituted the crimes of aggravated cruelty to animals, in violation of Agriculture andMarkets Law § 353-a (1), and overdriving, torturing, and injuring animalsin violation of Agriculture and Markets Law § 353. The order dated April28, 2014 denied Shannel P.'s motion pursuant to Family Court Act§§ 355.1 and 315.2 to vacate the order of fact-finding dated January30, 2014, and to dismiss the petition.
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 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, Queens County, for furtherproceedings pursuant to Family Court Act § 375.1; and it is further,
Ordered that the order dated April 28, 2014 is vacated, without costs ordisbursements, and the appeal from that order is dismissed as academic in light of ourdetermination on the appeal from the order of disposition.
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 Jonathan E., 119 AD3d 943 [2014]). However, since there may becollateral consequences resulting from the adjudication of delinquency, the appeal fromso much of the order of disposition as adjudged the appellant to be a juvenile delinquenthas not been rendered academic (see Family Ct Act § 783; Matter of Jonathan E., 119AD3d 943 [2014]).
The appellant was adjudicated a juvenile delinquent on the basis of the Family [*2]Court's finding that she committed acts which, if committedby an adult, would have constituted the crimes of aggravated cruelty to animals inviolation of Agriculture and Markets Law § 353-a (1), and overdriving,torturing, and injuring animals in violation of Agriculture and Markets Law§ 353. The appellant contends, among other things, that the findings of theFamily Court were against the weight of the evidence.
In conducting our weight of the evidence review, we have a responsibility toaffirmatively review the record; independently assess all of the proof; substitute our owncredibility determinations for those made by the Family Court in an appropriate case;determine whether the Family Court's determination was factually correct; and acquit theappellant if we are not convinced that the Family Court's adjudication of the appellant asa juvenile delinquent was proven beyond a reasonable doubt (see People v Delamota, 18NY3d 107, 116-117 [2011]; Matter of Danielle B., 94 AD3d 757, 758 [2012]). We must"weigh conflicting testimony, review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions" (People v Danielson, 9 NY3d342, 348 [2007]). In weighing the conflicting testimony in a single-witnessidentification case, as here, we must independently consider, among other things, thetruthfulness and reliability of the identification testimony (see People v Daniels,88 AD2d 392, 400 [1982]; see also CJI2d[NY] Identification).
At the fact-finding hearing, the presentment agency called a witness who testifiedthat she observed the then 12-year-old appellant toss a kitten underneath the wheels of anoncoming vehicle. She was the only witness who identified the appellant as theperpetrator, and her identification was not corroborated by any other evidence in therecord.
However, the reliability of the witness's identification of the appellant was called intodoubt by several factors. An examination of her testimony reveals that the witness hadonly a limited opportunity and ability to observe the perpetrator because the incidentoccurred over a relatively short period of time, and there was a distance of a minimum of10 feet between the witness and the perpetrator during their interaction. The witness wasalso admittedly excited and upset during the incident. In addition, the witness'sdescription of the perpetrator lacked specificity, and did not include body shape, height,weight, facial features, skin tone, accent, or any distinctive characteristics. We furthernote that the incident occurred in the late afternoon near the time that students were beingreleased from several neighborhood schools, that the perpetrator was dressed in a schooluniform similar in type to the uniforms worn by students at those schools, and that thewitness's description of the school uniform worn by the perpetrator did not match theappellant's school uniform. Under these circumstances, the witness's identification of theappellant was not convincing when balanced against the substantial evidence submittedby the appellant in her own defense.
In her own defense, the appellant denied any involvement. Her testimony wascorroborated by objective evidence in the record, including that her school uniform didnot match the perpetrator's uniform as described by the witness. In addition, although thewitness testified that the perpetrator was accompanied by several friends at the time ofthe incident, the appellant testified that she walked home from school by herself everyday. The appellant's testimony in this regard was consistent with the fact that she wasstopped the following day by an investigator as she was walking home alone. She alsopresented the testimony of the assistant principal of her school, a disinterested witness,who testified that the appellant was always compliant with the dress code, which requiredher to wear pants of a color different from those worn by the perpetrator. The assistantprincipal further testified that the appellant's reputation among her teachers was that of an"obedient and peaceful" student who was "never in trouble." The appellant's babysitterand mother further attested to her good character.
Based upon all the credible evidence, a different fact-finding would not have beenunreasonable. Weighing the relative probative force of the witness's testimony against theappellant's witnesses' testimony, and the relative strength of conflicting inferences thatmay be drawn from the testimony, we find that the Family Court's fact-findingdetermination was against the weight of the evidence (see Matter of Shamik M., 117AD3d 1056, 1057 [2014], citing People v Bleakley, 69 NY2d 490, 495[1987]; see also Matter of Danielle B., 94 AD3d at 758; Matter of Kalexis R., 85 AD3d927, 928-929 [2011]; Matter of Quamel D., 78 AD3d 1050, 1051-1052[2010]).
[*3] The appellant's remainingcontention, raised in point II of her brief, is without merit. Dickerson, Hinds-Radix andBarros, JJ., concur.
Rivera, J.P., concurs in part and dissents in part, and votes to dismiss the appeal fromso much of the order of disposition as placed the appellant on probation for a period of12 months, affirm the order of disposition insofar as reviewed, and affirm the order datedApril 28, 2014, with the following memorandum: For the reasons that follow, I wouldaffirm the order of disposition insofar as reviewed and affirm the order dated April 28,2014.
On October 21, 2013, the presentment agency filed a petition alleging that theappellant, who was then 12 years old, had committed acts which, if committed by anadult, would have constituted the crimes of aggravated cruelty to animals in violation ofAgriculture and Markets Law § 353-a (1), and overdriving, torturing, andinjuring animals in violation of Agriculture and Markets Law § 353.
At a fact-finding hearing, the presentment agency presented, inter alia, the testimonyof an eyewitness. The eyewitness testified that, on September 11, 2013, at approximately3:20 p.m. to 3:25 p.m., she observed the appellant throwing into the air a grey kitten,later identified as a five-month old kitten named "Little Old Man." As a vehicleproceeding at a "good speed" approached, the witness observed the appellant throw thekitten underneath the vehicle, where it was "immediate[ly]" crushed to death. At the timethat the appellant threw the kitten under the vehicle, there were no other individualspresent with the appellant.
Upon observing this conduct, the witness confronted the appellant. The witness andthe appellant engaged in a heated verbal exchange. During their verbal interaction, thewitness stood approximately 10 feet away from the appellant. Thereafter, she continuedto follow the appellant as the appellant walked away. The witness stated that theappellant turned around and stated to her, "You like what you see, You like what you see,Keep watching, Take a picture, it lasts longer." The witness estimated that approximatelyfive minutes elapsed from the time that she initially observed the appellant tossing thekitten to when the appellant walked away. During that time, the witness did not lose sightof the appellant.
The following day, the witness returned to the area of the incident with aninvestigator from the American Society for the Prevention of Cruelty to Animals. On thatday, she identified the appellant as the youth who committed the subject acts against thekitten. The witness testified, "I saw her profile and then when we got ahead of her I sawher face and I knew a hundred fifty percent it was her."
On her own behalf, the appellant presented the testimony of the assistant principal ofher school, who testified that the appellant was not known to have disciplinary problemsin school. Further, the appellant's babysitter testified, among other things, that theappellant "always" arrived home from school at approximately 3:30 p.m. The appellant'smother testified that, on September 11, 2013, at 3:37 p.m., she received a telephone callfrom the appellant. Finally, the appellant herself testified to the effect that she wouldnever hurt any animal.
Following the fact-finding hearing, the Family Court found that the appellantcommitted acts which, if committed by an adult, would have constituted the crimesenumerated in the petition. Thereafter, the appellant moved pursuant to Family Court Act§§ 315.2 and 355.1 to vacate the fact-finding order and to dismiss thepetition in the interest of justice. In an order dated April 28, 2014, the court denied themotion. The court concluded that the presentment agency's evidence established that theappellant "deliberately" placed the kitten in front of oncoming vehicular traffic and foundthat the appellant's identity as the perpetrator was established beyond a reasonable doubt.In an order of disposition dated April 29, 2014, the Family Court adjudged the appellantto be a juvenile delinquent and placed her on probation for a period of 12months.
[*4] Viewing the evidence in the lightmost favorable to the presentment agency (see Matter of David H., 69 NY2d 792,793 [1987]), I find that it was legally sufficient to establish, beyond a reasonable doubt,that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of aggravated cruelty to animals, in violation of Agriculture andMarkets Law § 353-a (1), and overdriving, torturing, and injuring animalsin violation of Agriculture and Markets Law § 353. Moreover, contrary tothe determination of my colleagues in the majority, in fulfilling my responsibility toconduct an independent review of the weight of the evidence (see Matter of Tevin K., 127AD3d 1090, 1091 [2015]; Matter of Dashawn R., 120 AD3d 1250, 1251 [2014]; Matter of Kaseem R., 113AD3d 779, 780 [2014]; cf. CPL 470.15 [5]; People v Danielson, 9 NY3d342 [2007]), I nevertheless accord great deference to the opportunity of thefactfinder to view the witnesses, hear the testimony, and observe the demeanor (cf.People v Mateo, 2 NY3d 383, 410 [2004]). Upon reviewing the record, I amsatisfied that the Family Court's fact-finding determination was not against the weight ofthe evidence (see Family Ct Act § 342.2 [2]; Matter of Darnell C., 66 AD3d771, 772 [2009]; cf. Peoplev Romero, 7 NY3d 633, 644-645 [2006]).
Here, a disinterested witness with absolutely no motive to lie consistently andcredibly testified that she observed the appellant commit the subject acts against thekitten. Contrary to the finding of my colleagues in the majority, as discussed above, thewitness's opportunity and ability to observe the appellant were not limited. During thecourse of the subject events, which occurred in daylight, the witness had an unobstructedview of the appellant. She had ample opportunity to observe the appellant as theappellant tossed the kitten up in the air and then under the moving vehicle. The witnessand the appellant were facing each other during the verbal exchange after the kitten'sdemise. This encounter provided another occasion for the witness to observe theappellant's facial features and demeanor. Further, the witness watched as the appellantwalked down the block and turned around to address additional remarks to her. Sheestimated that five minutes elapsed from when she initially observed the appellant tossthe kitten in the air until the appellant walked away. Significantly, throughout hertestimony, the witness remained steadfast with regard to her certainty that the appellantwas the youth whom she observed throw the kitten under the moving vehicle.
The witness's strong identification testimony, which was fully credited by the FamilyCourt, was not undermined by the self-serving evidence offered on the appellant's behalfby her witnesses. The Family Court's credibility determinations should not be disturbedunless clearly unsupported by the record (see Matter of Darnell G., 125 AD3d 969 [2015]; Matter of Christopher H., 123AD3d 713, 714 [2014]). Upon reviewing the record, I am satisfied that thedeterminations of the Family Court were not against the weight of the evidence and Idiscern no basis upon which to disturb the Family Court's determinations.
The appellant's remaining contentions are without merit. [Prior Case History: 43Misc 3d 1217(A), 2014 NY Slip Op 50687(U).]