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In re Myasia C.

Supreme Court of New York, First Department

October 1, 2013

In re Myasia C., A Person Alleged to be a Juvenile Delinquent, Appellant.

Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for presentment agency.

Friedman, J.P., Moskowitz, Richter, Manzanet-Daniels, Gische, JJ.

Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about May 23, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that she committed acts that, if committed by an adult, would constitute the crimes of menacing in the second degree and criminal possession of a weapon in the fourth degree, and placed her on probation for a period of 12 months, unanimously affirmed, without costs.

The record supports the court's determination that, notwithstanding an identification procedure suppressed by the court, each of the witnesses at issue had an independent source for his or her identification of appellant (see Neil v Biggers, 409 U.S. 188, 199-200 [1972]; People v Williams, 222 A.D.2d 149 [1st Dept 1996], lv denied 88 N.Y.2d 1072 [1996]). Each witness had an ample opportunity to see appellant during the altercation, which occurred over three to four minutes in a well-lit building. Furthermore, although the witnesses did not know appellant by name, they had not only seen her on numerous prior occasions, but were familiar with her as the result of earlier instances of threatening behavior.

The court properly denied that portion of appellant's suppression motion that sought a hearing under Dunaway v New York (442 U.S. 200 [1979]) concerning the legality of the arrest that resulted in her identification by the witnesses. The allegations in appellant's moving papers, when considered in the context of the information provided to appellant, were insufficient to create a factual dispute requiring a hearing (see People v Mendoza, 82 N.Y.2d 415 [1993]). Appellant was on notice that the factual predicate for her arrest was an incident of alleged menacing and possession of a knife that had occurred several days before the arrest. Appellant did not specifically deny those allegations or assert any other basis for suppression (see People v Jones, 95 N.Y.2d 721, 728-729 [2001]).


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