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William P. v. Erie County Attorney

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

IN THE MATTER OF WILLIAM P., RESPONDENT-APPELLANT.
v.
ERIE COUNTY ATTORNEY, PETITIONER-RESPONDENT.

Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered May 1, 2008 in a proceeding pursuant to Family Court Act article 3. The order, among other things, adjudged that respondent is a juvenile delinquent.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Respondent appeals from an order adjudicating him to be a juvenile delinquent based on the finding that he committed the crime of unlawful possession of weapons by persons under 16 (Penal Law § 265.05). That statute expressly provides that "[a] person who violates the provisions of [section 265.05] shall be adjudged a juvenile delinquent." Respondent contends that Family Court erred in refusing to suppress the gun without conducting a hearing because he was illegally searched by the school principal. We reject that contention. A suppression hearing was unnecessary inasmuch as respondent's "allegations on their face did not lay out a factual scenario which, if credited, would have warranted suppression' " (Matter of Elvin G., 47 AD3d 527, 527, quoting People v Coleman, 82 NY2d 415, 432). According to respondent, the principal confronted him based on information from another student that respondent was in possession of a gun in his book bag. "Under ordinary circumstances, a search of a student by a . . . school official will be justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating . . . the law" (New Jersey v T.L.O., 469 US 325, 341-342) and, here, respondent "did not present a legal basis upon which to challenge the [principal's] conduct" (Elvin G., 47 AD3d at 527-528).

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