| Matter of Traekwon I. |
| 2017 NY Slip Op 05675 [152 AD3d 431] |
| July 13, 2017 |
| Appellate Division, First Department |
[*1]
| In the Matter of Traekwon I., a Person Alleged to be a JuvenileDelinquent, Appellant. |
Larry S. Bachner, Jamaica, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Antonella Karlin of counsel), forpresentment agency.
Orders of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on orabout April 22, 2016, which adjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that appellant committed acts that, if committed by an adult, would constitute thecrimes of forcible touching, criminal possession of a weapon in the fourth degree, menacing inthe second degree and sexual abuse in the third degree, and also adjudicated appellant a juveniledelinquent upon his admission that he committed an act that, if committed by an adult, wouldconstitute the crime of petit larceny, and placed him on probation for concurrent periods of 12months in each case, unanimously affirmed, without costs. Appeal from fact-finding order, samecourt and Judge, entered on or about December 8, 2015, unanimously dismissed, without costs,as subsumed in the appeal from the order of disposition.
The court's fact-finding determination was based on legally sufficient evidence and was notagainst the weight of the evidence (People v Danielson, 9 NY3d 342 [2007]). There is no basis fordisturbing the court's credibility determinations. Menacing in the second degree and criminalpossession of a weapon in the fourth degree were established by the victim's testimony that shesaw appellant display a razor blade, and that she felt it as he pressed it against her neck.Regarding sexual abuse in the third degree, the element of sexual contact for the purpose ofsexual gratification could be inferred from appellant's conduct in squeezing the victim's breastsand buttocks, and there was no innocent explanation for that conduct (see Matter of XheenanN., 273 AD2d 50 [1st Dept 2000]). Regarding forcible touching, it could be inferred thatappellant had a motive to abuse or degrade the victim, and there was no legitimate purpose forhis acts.
Appellant's constitutional challenges to the forcible touching statute are unpreserved. In anycase, he has not met the "heavy burden" of demonstrating that it is unconstitutional (People vBright, 71 NY2d 376, 382 [1988]; see also People v Stuart, 100 NY2d 412, 420-422[2003]).
Appellant's speedy trial claim is unpreserved because no motion was made to dismiss thepetition on that ground, and we decline to review it in the interest of justice. In any event, theadjournments at issue were consented to by counsel, who agreed that the first day of thefact-finding hearing would be day 60 for speedy trial purposes (see Family Ct Act§§ 315.2 [1]; 340.1 [2]; Matter of Diogenes V., 245 AD2d 42, 43 [1stDept 1997]).
In each of the two dispositional orders, the court providently exercised its discretion inadjudicating appellant a juvenile delinquent, rather than granting adjournments in contemplationof dismissal. The court imposed the least restrictive dispositional alternative consistent withappellant's needs and the community's need for protection (see Matter of Katherine W.,62 NY2d 947 [1984]), given the seriousness of the underlying behavior, where one case involvedwielding a razor blade and sexual conduct, and the other case involved breaking into someone'shome. To the extent that, in addition to challenging the juvenile delinquency adjudication,appellant is also [*2]challenging the imposition of probation andthe conditions thereof, those challenges have become moot with the expiration of the term ofprobation.
We have considered appellant's remaining contentions and find them unavailing.Concur—Sweeny, J.P., Mazzarelli, Webber, Kahn and Kern, JJ.