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IN RE: SHAMARRI W. (Anonymous) (2009)

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

IN RE: SHAMARRI W. (Anonymous), appellant.

Decided: July 28, 2009

WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ. George E. Reed, Jr., White Plains, N.Y., for appellant. Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Martin G. Gleeson of counsel), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of fact-finding and disposition (one paper) of the Family Court, Westchester County (Horowitz, J.), entered October 16, 2008, which, after fact-finding and dispositional hearings, found that the appellant committed an act which, if committed by an adult, would have constituted the crime of assault in the second degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of one year.

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

Viewing the evidence in the light most favorable to the presentment agency (see Family Ct. Act § 342.2[2];  Matter of Ashley M., 35 A.D.3d 612, 613, 825 N.Y.S.2d 748;  cf. People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish, beyond a reasonable doubt, that the appellant committed an act which, if committed by an adult, would have constituted the crime of assault in the second degree (see Penal Law § 120.05[10][a];  People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039;  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951;  Matter of Anthony S., 305 A.D.2d 689, 690, 759 N.Y.S.2d 891).   Moreover, upon the exercise of our independent review power (cf. CPL 470.15[5] ), we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence (cf. People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  see Matter of Sharard W., 31 A.D.3d 458, 817 N.Y.S.2d 668;  Matter of Anthony S., 305 A.D.2d at 690, 759 N.Y.S.2d 891).

Contrary to the appellant's contention, the Family Court did not violate his due process rights.   The court had sufficient information before it to support the appellant's pre-petition detention (see Family Ct. Act §§ 307.4[4][c], 320.5[3][a][ii];  Matter of Benjamin L., 92 N.Y.2d 660, 666, 685 N.Y.S.2d 400, 708 N.E.2d 156;  Matter of Brion H., 161 A.D.2d 832, 834, 555 N.Y.S.2d 881).   Further, since the appellant was not detained for more than three days pending a fact-finding hearing, the failure to accord him a separate probable cause hearing did not violate any statutory right (see Schall v. Martin, 467 U.S. 253, 270, 104 S.Ct. 2403, 81 L.Ed.2d 207;  Family Ct. Act § 325.1[1];  Matter of Jeffrey V., 82 N.Y.2d 121, 126, 603 N.Y.S.2d 800, 623 N.E.2d 1150).

The Family Court properly denied the appellant's motion to dismiss the petition based on an alleged Brady violation (see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215).   The record contains no indication that the presentment agency actually possessed a statement from the subject witness, and the alleged content of the statement was not exculpatory in any event (see Matter of Javen C., 57 A.D.3d 537, 868 N.Y.S.2d 742;  Matter of Jose A., 44 A.D.3d 756, 758, 845 N.Y.S.2d 349;  People v. Delvecchio, 187 A.D.2d 726, 591 N.Y.S.2d 799).

The appellant's remaining contentions are without merit.

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