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In re Racheal M. (Anonymous)

Supreme Court of New York, Second Department

July 31, 2013

In the Matter of Racheal M. (Anonymous). Docket No. D-00400-12

Geanine Towers, Brooklyn, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L. Gordon of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Racheal M. appeals from (1) a fact-finding order of the Family Court, Kings County (Olshansky, J.), dated June 26, 2012, made after a hearing, finding that she committed acts which, if committed by an adult, would have constituted the crimes of attempted assault in the third degree, petit larceny, and criminal possession of stolen property in the fifth degree, and (2) an order of disposition of the same court dated August 1, 2012, which, upon the fact-finding order and after a dispositional hearing, adjudged her to be a juvenile delinquent, and placed her on probation for a period of 12 months.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

The appellant's challenge to the legal sufficiency of the evidence of attempted assault in the third degree and criminal possession of stolen property in the fifth degree is unpreserved for appellate review (see Matter of Kalexis R., 79 A.D.3d 755, 756; cf. CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which if committed by an adult, would have constituted the crimes of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00) and criminal possession of stolen property in the fifth degree (see Penal Law § 165.40). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348; cf. CPL 470.15[5]), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor (see Matter of Jamel C., 92 A.D.3d 782; cf. People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determinations were not against the weight of the evidence (see Family Ct Act § 342.2[2]; Matter of George R., 104 A.D.3d 949, 950).

The Family Court has broad discretion in determining the appropriate disposition (see Matter of Justin A., 82 A.D.3d 1219, 1220; Matter of Ashley P., 74 A.D.3d 1075, 1076). Here, the Family Court providently exercised its discretion in adjudicating the appellant a juvenile delinquent and placing her on probation for a period of 12 months (see Family Ct Act § 352.2), rather than directing an adjournment in contemplation of dismissal (see Family Ct Act § 315.3). The appellant was not entitled to an adjournment in contemplation of dismissal merely because this was her first encounter with the law, or in light of the other mitigating circumstances that she cites (see Matter of Jesus S., 104 A.D.3d 694, 695). The record establishes that the imposition of probation was the least restrictive alternative consistent with the appellant's best interests and the need for protection of the community (see Family Ct Act § 352.2[2][a]), particularly in light of, inter alia, the nature of the incident that led to the appellant's adjudication as a juvenile delinquent and the recommendations made in the probation report (see Matter of George R., 104 A.D.3d at 950).

The appellant was not deprived of the effective assistance of counsel (see Matter of Steven L., 86 A.D.3d 613, 614).

RIVERA, J.P., BALKIN, LEVENTHAL and COHEN, JJ., concur.


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