In re LaMonte J.

179 A.D.3d 683

113 N.Y.S.3d 565 (Mem)

In the MATTER OF LAMONTE J. (Anonymous), Appellant.

2019–06508

Docket No. D–472–84

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

Submitted—November 4, 2019

January 8, 2020

Warren S. Hecht, Forest Hills, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton and Julia Bedell of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see Family Ct. Act § 1112[a] ); and it is further,

ORDERED that the order dated May 2, 2019, is affirmed, without costs or disbursements.

In 1984, upon the denial of the appellant's motion to suppress physical evidence, and after a fact-finding hearing, the Family Court issued a fact-finding order finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon in the third degree (see Matter of LaMonte J. , 117 A.D.2d 807, 499 N.Y.S.2d 6 ). The court thereafter issued an order of disposition, among other things, adjudicating the appellant a juvenile delinquent (see id. ). In 2017, the appellant moved, in effect, pursuant to Family Court Act § 355.1 to vacate the order of disposition and the fact-finding order on the basis that newly discovered evidence showed that his motion to suppress the weapon should have been granted. The court denied the appellant's motion, without a hearing.

Pursuant to Family Court Act § 355.1(1), the court may vacate an order of disposition and a fact-finding order "[u]pon a showing of a substantial change of circumstances." Here, the appellant failed to make the requisite showing of a substantial change of circumstances (see Matter of Michael M. , 165 A.D.3d 1145, 1147, 86 N.Y.S.3d 550 ). In that respect, contrary to the appellant's contention, the newly discovered evidence did not tend to demonstrate that the building in which he was observed in possession of a gun lacked electricity at the time of his arrest, so as to render incredible a police officer's testimony that he saw a "shiny silver object" in the appellant's hand. Rather, the evidence merely demonstrated that a demolition permit was issued for the building 12 years before, and again approximately 8 months after, the appellant was observed in possession of a gun. Accord...