In re Joshua C.

159 A.D.3d 815

71 N.Y.S.3d 631

In the MATTER OF JOSHUA C. (Anonymous), appellant.

2016–13241

Docket No. D–24861–15

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

Submitted—February 5, 2018

March 14, 2018

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

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Tahirih M. Sadrieh of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal from an order of disposition of the Family Court, Queens County (Robert I. Caloras, J.), dated December 12, 2016. The order adjudicated Joshua C. a juvenile delinquent, upon an order of fact-finding of that court dated August 26, 2016, finding that he had committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (four counts), and sexual misconduct, and placed him on probation for a period of 20 months.

ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed an act which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree as alleged in count five of the petition, and substituting therefor a provision dismissing the fifth count of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.

In this juvenile delinquency proceeding, the Family Court found, after a fact-finding hearing, inter alia, that the presentment agency established beyond a reasonable doubt that the appellant engaged in the conduct charged in counts three, four, five, six, nine, and twelve of the petition, and that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (four counts), and sexual misconduct. After a dispositional hearing, the Family Court issued an order of disposition which adjudicated the appellant a juvenile delinquent and placed him on probation for a period of 20 months.

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 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the facts alleged in counts three, four, six, nine, and twelve of the petition, and that the appellant thereby committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, sexual abuse in the first degree (three counts), and sexual misconduct (see Penal Law §§ 130.50[3], 130.65[3], 130.20[2] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see Matter of Malik B., 151 A.D.3d 842, 843, 56 N.Y.S.3d 270 ; Matter of Brandon V., 133 A.D.3d 769, 769, 20 N.Y.S.3d 385 ; Matter of Dashawn R., 120 A.D.3d 1250, 1251, 992 N.Y.S.2d 122 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Malik B., 151 A.D.3d at 843, 56 N.Y.S.3d 270 ; Matter of Dajahn M., 110 A.D.3d 812, 813, 973 N.Y.S.2d 248 ; Matter of Danielle B., 94 A.D.3d 757, 758, 941 N.Y.S.2d 685 ). The Family Court's credibility determinations should not be disturbed unless clearly unsupported by the record (see Matter of Malik B., 151 A.D.3d at 843, 56 N.Y.S.3d 270 ; Matter of Brandon V., 133 A.D.3d at 770, 20 N.Y.S.3d 385 ). Upon reviewing the record, we are satisfied that the findings of fact as to these counts were not against the weight of the evidence.

We find, however, that the evidence was legally insufficient to establish beyond a reasonable doubt the facts alleged in count five of the petition, acts which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree based on mouth-to-mouth contact. The complainant testified at the fact-finding hearing that the appellant "tried to kiss" him on the lips, but the complainant "pushed [the appellant's] face away." Thus, we agree with the appellant that there was legally insufficient evidence to establish that the appellant's mouth made contact with the complainant's mouth (see Penal Law § 130.65[3] ; cf. Matter of Christian E., 68 A.D.3d 1109, 1110, 891 N.Y.S.2d 461 ). Accordingly, the Family Co...