In re Dashawn R.

120 A.D.3d 1250

992 N.Y.S.2d 122

2014 N.Y. Slip Op. 06093

In the Matter of DASHAWN R. (Anonymous), appellant.

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

Sept. 10, 2014.

Mark Diamond, New York, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Julie Steiner, and Faith Lovell of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Dashawn R. appeals from an order of disposition of the Family Court, Kings County (Ambrosio, J.), dated September 4, 2013, which, upon an order of fact-finding of the same court (McElrath, J.), dated July 2, 2013, finding that he committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree, assault in the second degree, grand larceny in the fourth degree, assault in the third degree, and criminal possession of stolen property in the fifth degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of 18 months. The appeal brings up for review the order of fact-finding and the denial, after a hearing (Ambrosio, J.), of those branches of the appellant's motion which were to suppress identification testimony and his statements to law enforcement officials.

ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof reciting that count 2 is “Covered by PL 160.10 01 CF,” and substituting therefor a provision reciting that count 2 is withdrawn; as so modified, the order of disposition is affirmed, without costs or disbursements, and the order of fact-finding is modified accordingly.

The appellant contends, and the presentment agency agrees, that the order of fact-finding and order of disposition inaccurately describe the disposition of count 2 (acts which, if committed by an adult, would constitute the crime of attempted robbery in the second degree). Accordingly, the order of fact-finding and order of disposition are modified to indicate that count 2 was withdrawn by the presentment agency.

The Family Court properly declined to suppress the appellant's statements to law enforcement officials ( seeFamily Ct. Act § 344.2). The hearing evidence demonstrated that the arresting detective properly placed the appellant in a designated juvenile room in a police station prior to questioning ( see22 NYCRR 205.20[d]; Matter of Javier L., 272 A.D.2d 474, 707 N.Y.S.2d 497). The appellant, in the presence of his mother, was given the proper Miranda warnings ( see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), and they indicated that they understood those rights. Nonetheless, the appellant agreed to answer questions posed by law enforcement officials ( seeFamily Ct. Act § 305.2[7], [8]; Matter of Dominique R., 29 A.D.3d 702, 814 N.Y.S.2d 727; Matter of Michael L., 285 A.D.2d 466, 727 N.Y.S.2d 333; Matter of Javier L., 272 A.D.2d at 474, 707 N.Y.S.2d 497). Even if the Family Court believed the mother's testimony regarding a promise of leniency, this would not render the appellant's statements involuntary, since the appellant concedes that no promise was ever conveyed to him ( cf. People v. Morillo, 225 A.D.2d 479, 639 N.Y.S.2d 921).

Contrary to the appellant's contentions, the victim's identification of the perpetrators in a videotape of the incident was not a formal identification procedure, as the victim was simply ratifying the events depicted on the videotape that she had experienced firsthand ( cf. People v. Gee, 99 N.Y.2d 158, 162, 753 N.Y.S.2d 19, 782 N.E.2d 1155). Furthermore, the victim's inability to identify the appellant in a photograph prior to trial goes to the weight of her in-court identification, and not to its admissibility ( cf. People v. Grant, 94 A.D.3d 1139, 942 N.Y.S.2d 223).

Viewing the evidence adduced at the fact-finding hearing in the light most favorable to the presentment agency ( see Matter of Tanasia Elanie E., 49 A.D.3d 642, 853 N.Y.S.2d 380; Matter of Shariff A., 28 A.D.3d 546, 547, 816 N.Y.S.2d 92), we find that it was legally sufficient to support the determinations made in the order of fact-finding, other than the determination as to count 2.

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