In re Keir B.

115 A.D.3d 855

982 N.Y.S.2d 347

2014 N.Y. Slip Op. 01746

In the Matter of KEIR B. (Anonymous), appellant.

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

March 19, 2014.

Geanine Towers, Brooklyn, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Scott Shorr of counsel; Julie Bernstein on the brief), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Keir B. appeals from (1) a fact-finding order of the Family Court, Richmond County (Sacco, J.), dated May 20, 2013, made after a fact-finding hearing, finding that he committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree, and (2) an order of disposition of the same court dated July 9, 2013, which, upon the fact-finding order, inter alia, adjudged him to be a juvenile delinquent and, upon his consent, placed him on probation for a period of 12 months.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as the fact-finding order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the appeal from so much of the order of disposition as, upon the appellant's consent, placed him on probation for a period of 12 months is dismissed, without costs or disbursements, as the appellant is not aggrieved thereby ( see CPLR 5511; Matter of Cristian C., 104 A.D.3d 941, 962 N.Y.S.2d 335); and it is further,

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

The appellant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see Matter of George R., 104 A.D.3d 949, 962 N.Y.S.2d 332;Matter of Charles S., 41 A.D.3d 484, 838 N.Y.S.2d 136). In any event, viewing the evidence in the light most favorable to the presentment agency ( see Matter of David H., 69 N.Y.2d 792, 513 N.Y.S.2d 111, 505 N.E.2d 621;Matter of Danasia Mc., 94 A.D.3d 1122, 943 N.Y.S.2d 549), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed acts, which, if committed by an adult, would have constituted the crime of sexual abuse in the first degree ( seePenal Law § 130.65[3] ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see Matter of Hasan C., 59 A.D.3d 617, 617–618, 873 N.Y.S.2d 709;cf.CPL 470.15[5] ), we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Danasia Mc., 94 A.D.3d at 1124, 943 N.Y.S.2d 549;cf. People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053,cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence ( seeFamily Ct. Act § 342.2[2]; Matter of Darnell C., 66 A.D.3d 771,...