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In Re Emanuel G.

New York Supreme Court Appellate Division, First Department


March 28, 2013

IN RE EMANUEL G., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT.

Matter of Emanuel G.

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.

Decided on March 28, 2013 Tom, J.P., Acosta, Saxe, Freedman, JJ.

Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about February 21, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), sexual misconduct and sexual abuse in the third degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings as to sexual misconduct and sexual abuse in the third degree and dismissing those counts of the petition, and otherwise affirmed, without costs.

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibility determinations. While the victim may have used childlike language to describe matters of anatomy, the totality of his testimony warrants the inference that appellant engaged in anal sexual conduct (Penal Law § 130.00[2][b]). As for the sexual abuse counts, the evidence warrants the inference that appellant acted for the purpose of sexual gratification.

Appellant did not preserve his arguments that the court erred in admitting certain medical records and that counsel for the presentment agency engaged in misconduct in cross-examination of appellant and in summation, and we decline to reach these claims in the interest of justice. As an alternative holding, we find that any errors were harmless, particularly in the context of a non-jury trial (see People v Moreno, 70 NY2d 403, 406 [1987]).

As the presentment agency concedes, the sexual misconduct and third-degree sexual abuse findings should be dismissed as lesser included offenses.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 28, 2013

CLERK

20130328

© 1992-2013 VersusLaw Inc.



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