In re Shannel P.

137 A.D.3d 1039

27 N.Y.S.3d 195

In the Matter of SHANNEL P. (Anonymous), appellant.

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

March 16, 2016.

Law Offices of Douglas G. Rankin, P.C., Brooklyn, N.Y., for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Rachel Glantz of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.

Appeals from (1) an order of disposition of the Family Court, Queens County (John M. Hunt, J.), dated April 29, 2014, and (2) an order of that court dated April 28, 2014.

The order of disposition adjudicated Shannel P. a juvenile delinquent and placed her on probation for a period of 12 months. The appeal from the order of disposition brings up for review an order of fact-finding of that court dated January 30, 2014, which, after a hearing, found that she had committed acts which, if committed by an adult, would have constituted the crimes of aggravated cruelty to animals, in violation of Agriculture and Markets Law § 353–a(1), and overdriving, torturing, and injuring animals in violation of Agriculture and Markets Law § 353. The order dated April 28, 2014, denied Shannel P.'s motion pursuant to Family Court Act §§ 355.1 and 315.2 to vacate the order of fact-finding dated January 30, 2014, and to dismiss the petition.

ORDERED that the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order of disposition is reversed insofar as reviewed, on the facts, without costs or disbursements, the fact-finding order is vacated, the petition is dismissed, and the matter is remitted to the Family Court, Queens County, for further proceedings pursuant to Family Court Act § 375.1 ; and it is further,

ORDERED that the order dated April 28, 2014, is vacated, without costs or disbursements, and the appeal from that order is dismissed as academic in light of our determination on the appeal from the order of disposition.

The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months has been rendered academic, as the period of placement has expired (see Matter of Jonathan E., 119 A.D.3d 943, 989 N.Y.S.2d 876 ). However, since there may be collateral consequences resulting from the adjudication of delinquency, the appeal from so much of the order of disposition as adjudged the appellant to be a juvenile delinquent has not been rendered academic (see Family Ct. Act § 783 ; Matter of Jonathan E., 119 A.D.3d 943, 989 N.Y.S.2d 876 ).

The appellant was adjudicated a juvenile delinquent on the basis of the Family Court's finding that she committed acts which, if committed by an adult, would have constituted the crimes of aggravated cruelty to animals in violation of Agriculture and Markets Law § 353–a(1), and overdriving, torturing, and injuring animals in violation of Agriculture and Markets Law § 353. The appellant contends, among other things, that the findings of the Family Court were against the weight of the evidence.

In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record; independently assess all of the proof; substitute our own credibility determinations for those made by the Family Court in an appropriate case; determine whether the Family Court's determination was factually correct; and acquit the appellant if we are not convinced that the Family Court's adjudication of the appellant as a juvenile delinquent was proven beyond a reasonable doubt (see People v. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; Matter of Danielle B., 94 A.D.3d 757, 758, 941 N.Y.S.2d 685 ). We must "weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions" (People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). In weighing the conflicting testimony in a single-witness identification case, as here, we must independently consider, among other things, the truthfulness and reliability of the identification testimony (see People v. Daniels, 88 A.D.2d 392, 400, 453 N.Y.S.2d 699 ; see also CJI2d[NY] Identification).

At the fact-finding hearing, the presentment agency called a witness who testified that she observed the then 12–year–old appellant toss a kitten underneath the wheels of an oncoming vehicle. She was the only witness who identified the appellant as the perpetrator, and her identification was not corroborated by any other evidence in the record.

However, the reliability of the witness's identification of the appellant was called into doubt by several factors. An examination of her testimony reveals that the witness had only a limited opportunity and ability to observe the perpetrator because the incident occurred over a relatively short period of time, and there was a distance of a minimum of 10 feet between the witness and the perpetrator during their interaction. The witness was also admittedly excited and upset during the incident. In addition, the witness's description of the perpetrator lacked specificity, and did not include body shape, height, weight, facial features, skin tone, accent, or any distinctive characteristics. We further note that the incident occurred in the late afternoon near the time that students were being released from several neighborhood schools, that the perpetrator was dressed in a school uniform similar in type to the uniforms worn by students at those schools, and that the witness's description of the school uniform worn by the perpetrator did not match the appellant's school uniform. Under these circumstances, the witness's identification of the appellant was not convincing when balanced against the substantial evidence submitted by the appellant in her own defense.

In her own defense, the appellant denied any involvement. Her testimony was corroborated by objective evidence in the record, including that her school uniform did not match the perpetrator's uniform as described by the witness. In addition, although the witness testified that the perpetrator was accompanied by several friends at the time of the incident, the appellant testified that she walked home from school by herself every day. The appellant's testimony in this regard was consistent with the fact that she was stopped the following day by an investigator as she was walking home alone. She also presented the testimony of the assistant principal of her school, a disinterested witness, who testified that the appellant was always compliant with the dress code, which required her to wear pants of a color different from those worn by the perpetrator. The assistant principal further testified that the appellant's reputation among her teachers was that of an "obedient and peaceful" student who was "never in trouble." The appellant's babysitter and mother further attested to her good character.

Based upon all the credible evidence, a different fact-finding would not have been unreasonable. Weighing the relative probative force of the witness's testimony against the appellant's witnesses' testimony, and the relative strength of conflicting inferences that may be drawn from the testimony, we find that the Family Court's fact-finding determination was against the weight of the evidence (see Matter of Shamik M., 117 A.D.3d 1056, 1057, 986 N.Y.S.2d 566, citing People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ; see also Matter of Danielle B., 94 A.D.3d at 758, 941 N.Y.S.2d 685 ; Matter of Kalexis R., 85 A.D.3d 927, 928–929, 925 N.Y.S.2d 356 ; Matter of Quamel D., 78 A.D.3d 1050, 1051–1052, 911 N.Y.S.2d 471 ).

The appellant's remaining contention, raised in Point II of her brief, is without merit.

DICKERSON, HINDS–RADIX and BARROS, JJ., concur.

RIVERA, J.P., concurs in part and dissents in part, and votes to dismiss the appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months, affirm the order of disposition insofar as reviewed, and affirm the order dated April 28, 2014, with the following memorandum:

For the reasons that follow, I would affirm the order of disposition insofar as reviewed and affirm the order dated April 28, 2014.

On October 21, 2013, the presentment agency filed a petition alleging that the appellant, who was then 12 years old, had committed acts which, if committed by an adult, would have constituted the crimes of aggravated cruelty to animals in violation of Agriculture and Markets Law § 353–a(1), and overdriving, torturing, and injuring animals in violation of Agriculture and Markets Law § 353.

At a fact-finding hearing, the presentment agency presented, inter alia, the testimony of an eyewitness. The...