In re Dashawn R.

114 A.D.3d 686

979 N.Y.S.2d 680

2014 N.Y. Slip Op. 00668

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

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

Feb. 5, 2014.

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

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow of counsel; Ingrid Gustafson on the brief), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, L. PRISCILLA HALL, and SHERI S. ROMAN, 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 February 25, 2013, which, upon a fact-finding order of the same court dated January 7, 2013, made after a hearing, finding that he committed acts, which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree, attempted grand larceny in the fourth degree, and assault in the third degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of 12 months. The appeal brings up for review the fact-finding order and the denial, after a hearing, of that branch of the appellant's omnibus motion which was to suppress identification testimony.

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

Contrary to the appellant's contentions, the showup procedure by which the complainant identified him was reasonable under the circumstances, having been conducted in close spatial and temporal proximity to the incident ( see People v. Guitierres, 82 A.D.3d 1116, 919 N.Y.S.2d 211; Matter of Kassan D., 282 A.D.2d 747, 724 N.Y.S.2d 334). Furthermore, there was no evidence of undue suggestiveness ( see People v. Guy, 47 A.D.3d 643, 850 N.Y.S.2d 476; Matter of Louis C., 6 A.D.3d 430, 774 N.Y.S.2d 567).

The appellant contends that his right to a speedy fact-finding hearing was violated ( seeFamily Ct. Act § 340.1[2]; Matter of George T., 99 N.Y.2d 307, 756 N.Y.S.2d 103, 786 N.E.2d 2; Matter of Frank C., 70 N.Y.2d 408, 413–414, 522 N.Y.S.2d 89, 516 N.E.2d 1203). This contention is unpreserved for appellate review, as no objection on that ground was raised during the fact-finding hearing ( see Matter of Gregory N., 108 A.D.3d 553, 969 N.Y.S.2d 114; Matter of Yarras F., 5 A.D.3d 481, 772 N.Y.S.2d 563). In any event, the contention is without merit, since counsel repeatedly consented to adjourn the proceedings ( seeFamily Ct. Act § 340.1), thereby waiving speedy fact-finding hearing objections and tolling the 60–day statutory period within which the fact-finding hearing must be commenced ( see Matter of Curnelle T., 17 A.D.3d 472, 792 N.Y.S.2d 344). Contrary to the appellant's contentions, counsel was not ineffective for failing to move to dismiss the petition on speedy fact-finding hearing grounds ( see Matter of Shaheen P.J., 29 A.D.3d 996, 817 N.Y.S.2d 304). The appellant's counsel provided meaningful representation ( see Matter of John M.P., 54 A.D.3d 1041, 1042, 864 N.Y.S.2d 550; cf. People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The appellant's contention that the Family Court failed to hold a proper dispositional hearing is unpreserved for appellate review ( see Matter of Toni Ann O., 56 A.D.3d 563, 867 N.Y.S.2d 504) and, in any event, is without merit ( s...