In re Arel J.

136 A.D.3d 913

26 N.Y.S.3d 290

In the Matter of AREL J. (Anonymous), appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 17, 2016.

Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Jess Rao of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg of counsel; Jared Evans on the brief), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Appeal from an order of disposition of the Family Court, Kings County (Jacqueline D. Williams, J.), dated November 21, 2014. The order adjudicated Arel J. a juvenile delinquent and placed him on probation for a period of seven months. The appeal brings up for review a fact-finding order of that court dated July 24, 2014, which, after a hearing, found that Arel J. committed acts which, if committed by an adult, would have constituted the crime of attempted criminal trespass in the second degree.

ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of seven months is dismissed as academic, without costs or disbursements, as the period of probation has expired; and it is further,

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

While standing on the roof of a parking garage located adjacent to a seven-story multi-unit apartment building (hereinafter the subject building), the appellant allegedly attempted to open the window of a second-floor apartment from the outside. The appellant was arrested and charged with, inter alia, committing acts which, if committed by an adult, would have constituted the crime of attempted criminal trespass in the second degree. A fact-finding hearing was conducted, and at the close of the presentment agency's case, the appellant moved to dismiss the petition, contending that the presentment agency had failed to make a prima facie case. The Family Court denied the appellant's motion to dismiss. The appellant then moved for a missing witness inference with respect to a porter who worked in, and two tenants who lived in, the subject building, all of whom did not testify at the hearing. The Family Court denied that branch of the appellant's motion which was for a missing witness inference as to the tenants, and granted that branch of the appellant's motion which was for a missing witness inference as to the building porter. Thereafter, the court determined that the appellant had committed acts which, if committed by an adult, would have constituted the crime of attempted criminal trespass in the second degree. The appellant was adjudicated a juvenile delinquent and placed on probation for a period of seven months.

The appellant contends that the evidence was legally insufficient to prove that he attempted to open a window of the subject building or, if he did, that he did not have a privilege or license to enter it. The appellant's challenge to the legal sufficiency of the evidence establishing that he attempted to open a window of the subject building is unpreserved for appellate review (see Matter of Brandon V., 133 A.D.3d 769, 20 N.Y.S.3d 385 ; Matter of Myron J., 123 A.D.3d 1030, 1031, 999 N.Y.S.2d 169 ). In any event, the defendant's contentions are without merit. Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621 ; Matter of Dayshawn S., 122 A.D.3d 748, 749, 995 N.Y.S.2d 614 ), we find that there was legally sufficient evidence to prove that the appellant was attempting to open a window of the subject building and that he did not have a license or privilege to enter the building (see Matter of Lonique M., 93 A.D.3d 203, 207, 939 N.Y.S.2d 341 ; People v. Thornton, 4 A.D.3d 561, 771 N.Y.S.2d 597 ; People v. Battle, 202 A.D.2d 1045, 609 N.Y.S.2d 716 ; People v. Quinones, 173 A.D.2d 395, 396, 570 N.Y.S.2d 26 ).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Dayshawn S., 122 A.D.3d at 749, 995 N.Y.S.2d 614 ; Matter of Michale A.C., 73 A.D.3d 1042, 1043, 900 N.Y.S.2d 655 ; cf. CPL 470.15[5] ; People v....