| Matter of Jzamaine E.M. |
| 2017 NY Slip Op 03516 [150 AD3d 738] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Jzamaine E.M.,Appellant. |
Kelli M. O'Brien, Goshen, NY, for appellant.
Langdon C. Chapman, County Attorney, Goshen, NY (Tina M. McCloud of counsel), forrespondent.
Appeals by Jzamaine E.M. from (1) an order of fact-finding of the Family Court, OrangeCounty (Carol S. Klein, J.), dated April 11, 2016, (2) an order of that court dated March 10,2015, and (3) an order of disposition of that court dated March 28, 2016. The order offact-finding, after a hearing, determined that Jzamaine E.M. had committed acts which, ifcommitted by an adult, would have constituted the crimes of grand larceny in the fourth degreeand petit larceny. The order dated March 10, 2015, denied those branches of his omnibus motionwhich were to dismiss the petition and to suppress identification testimony. The order ofdisposition adjudicated him a juvenile delinquent and, upon his consent, placed him on probationfor a period of two years, to include 50 hours of community service.
Ordered that the appeals from the order of fact-finding and the order dated March 10, 2015,are dismissed, without costs or disbursements, as those orders were superseded by the order ofdisposition, and are brought up for review on the appeal from the order of disposition; and it isfurther,
Ordered that the order of disposition is affirmed, without costs or disbursements.
For a juvenile delinquency petition, or a count thereof, to be sufficient on its face, "thefactual part of the petition or of any supporting depositions must set forth sworn, nonhearsayallegations sufficient to establish, if true, every element of each crime charged and the allegeddelinquent's commission thereof" (Matter of Matthew W., 48 AD3d 587, 588 [2008]; seeFamily Ct Act § 311.2 [3]; Matter of Neftali D., 85 NY2d 631, 635[1995]; Matter of Shakeim C., 97AD3d 675, 676 [2012]). "Such allegations must be set forth in the petition and/or thesupporting depositions" (Matter of Matthew W., 48 AD3d at 588; see Family CtAct § 311.2 [3]; Matter of Jahron S., 79 NY2d 632, 636 [1992]). "Thefailure to comply with this requirement constitutes a nonwaivable jurisdictional defect thatdeprives the court of subject matter jurisdiction to entertain the petition or count" (Matter ofMatthew W., 48 AD3d at 588; see Matter of Neftali D., 85 NY2d at 635). Here,contrary to the appellant's contention, the juvenile delinquency petition was facially sufficient.The supporting deposition, which had been translated for the complainant by a Spanish-speakingpolice officer, was not defective, inasmuch as there was no indication on the face of theinstrument that the complainant had not read and understood it or was incapable of doing so (see Matter of Shaquana S., 9 AD3d466, 467 [2004]). Accordingly, the Family Court properly determined that the appellant wasnot entitled to [*2]dismissal of the petition on the ground that itwas facially defective.
Contrary to the appellant's contention, the showup identification, which was conducted inclose geographic and temporal proximity to the incident, was reasonable under the circumstancesand not unduly suggestive (see Matter ofShan M., 137 AD3d 1144, 1145 [2016]; Matter of Kedne L., 45 AD3d 843, 844 [2007]).
Viewing the evidence in the light most favorable to the presentment agency (see Matter ofDavid H., 69 NY2d 792 [1987]; Matter of Danasia Mc., 94 AD3d 1122 [2012]), we find that it waslegally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts,which, if committed by an adult, would have constituted the crimes of grand larceny in the fourthdegree (Penal Law § 155.30) and petit larceny (Penal Law § 155.25).Moreover, in fulfilling our responsibility to conduct an independent review of the weight of theevidence (see Matter of Hasan C.,59 AD3d 617 [2009]), we nevertheless accord great deference to the opportunity of the trierof fact to view the witnesses, hear the testimony, and observe demeanor (see Matter ofDanasia Mc., 94 AD3d at 1124; Matter of Hasan C., 59 AD3d at 617-618; cf.People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record, we are satisfied that the Family Court's fact-findingdetermination was not against the weight of the evidence (see Family Ct Act§ 342.2 [2]; Matter ofDarnell C., 66 AD3d 771, 772 [2009]; cf. People v Romero, 7 NY3d 633, 644-645 [2006]).
The record does not support the appellant's claim that the presentment agency failed to turnover Brady and Rosario material (Brady v Maryland, 373 US 83, 83[1963]; People v Rosario, 9 NY2d 286 [1961]). Any delay in doing so did notsubstantially prejudice the appellant; therefore, neither a reopening of the Wade hearingnor reversal is warranted (United States v Wade, 388 US 218 [1967]; see People vMartinez, 71 NY2d 937, 940 [1988]; People v Uka, 92 AD3d 907, 908 [2012]). Dillon, J.P., Cohen,Maltese and Duffy, JJ., concur.