In re Khamari P.

179 A.D.3d 697

116 N.Y.S.3d 323

In the MATTER OF KHAMARI P. (Anonymous), Appellant.

2018–13721

2018–13723

Docket No. E–4244–16

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

Argued—November 19, 2019

January 8, 2020

Jonathan A. Rosenberg, Brooklyn, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Deborah A. Brenner and Cynthia Kao of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Khamari P. appeals from (1) an order of disposition of the Family Court, Kings County (Erik S. Pitchal, J.), dated October 29, 2018, and (2) an order of protection of the same court, also dated October 29, 2018. The order of disposition, upon an order of fact-finding of the same court dated April 23, 2018, made after a hearing, finding that Khamari P. committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), criminal sexual act in the third degree (two counts), sexual misconduct (two counts), and sexual abuse in the third degree (two counts), adjudicated Khamari P. a juvenile delinquent and placed him on probation for a period of 18 months. The order of protection directed Khamari P., inter alia, to stay away from the complainant until and including April 29, 2020.

ORDERED that the order of disposition and the order of protection are affirmed, without costs or disbursements.

By petition dated July 28, 2016, the presentment agency alleged that the appellant committed acts which, if committed by an adult, would constitute the crimes of criminal sexual act in the first degree (two counts), course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, sexual abuse in the first degree (two counts), criminal sexual act in the third degree (two counts), sexual misconduct (two counts), and sexual abuse in the third degree (two counts). After a fact-finding hearing, the Family Court found beyond a reasonable doubt that the appellant had committed acts which, if committed an adult, would have constituted the crimes of criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), criminal sexual act in the third degree (two counts), sexual misconduct (two counts), and sexual abuse in the third degree (two counts). The court adjudicated the appellant a juvenile delinquent and placed him on probation for a period of 18 months. The court also issued an order of protection directing the appellant, inter alia, to stay away from the complainant until and including April 29, 2020.

As a threshold matter, the appellant failed to preserve for appellate review his contention that the Family Court should have precluded the presentment agency from introducing into evidence statements he made to a detective on the ground that the presentment agency failed to provide timely notice of those statements in accordance with Family Court Act § 330.2 (see CPL 710.30 ; People v. Moreno, 148 A.D.3d 827, 828, 48 N.Y.S.3d 721 ). In any event, this contention is without merit inasmuch as the record demonstrates that the appellant was served with a voluntary disclosure form at the parties' initial court appearance on the date the petition was filed, which gave notice to the appellant of the presentment agency's intent to offer the subject statements into evidence at the fact-finding hearing (see People v. Campbell, 158 A.D.3d 723, 724, 71 N.Y.S.3d 533 ).

The appellant also failed to preserve for appellate review his contentions that his right to a speedy fact-finding hearing and due process right to prompt prosecution had been violated (see Matter of Dashawn R., 114 A.D.3d 686, 686, 979 N.Y.S.2d 680 ). In any event, these contentions are without merit. The record demonstrates that the appellant's counsel repeatedly consented to adjourn the proceedings, "thereby waiving speedy fact-finding hearing objections and tolling the 60–day statutory period within which the fact-finding hearing must be commenced" ( id. ; see Matter of Christina R.H., 90 A.D.3d 926, 927, 935 N.Y.S.2d 612 ; Matter of Dania W., 65 A.D.3d 1356, 1356, 886 N.Y.S.2d 183 ). Furthermore, under the circumstances, the approximate eight-month delay between the filing of the petition and the commencement of the fact-finding hearing was not unreasonable and did not deprive the appellant of his due process right to prompt prosecution (see Matter of Benjamin L., 92 N.Y.2d 660, 685 N.Y.S.2d 400, 708 N.E.2d 156 ; People v. Taranovich, 37 N.Y.2d 442, 447, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; Matter of Dayshawn S., 122 A.D.3d 748, 749, 995 N.Y.S.2d 614 ).

Contrary to the appellant's...