IN RE: JULISSA R. (Anonymous) (2006)

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Bogacz, J.), dated March 1, 2005, which, upon a fact-finding order of the same court dated November 22, 2004, made after a hearing, finding that the appellant committed acts, which, if committed by an adult, would have constituted the crimes of sexual abuse in the first degree, forcible touching (two counts), sexual abuse in the second degree, unlawful imprisonment in the second degree, criminal facilitation in the fourth degree, and assault in the third degree, adjudged her to be a juvenile delinquent and placed her on probation for a period of 12 months.   The appeal brings up for review the fact-finding order dated November 22, 2004.

 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, as the period of probation has expired;  and it is further,

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

 To sustain a determination based upon accessorial liability, the presentment agency must prove, beyond a reasonable doubt, that the accused acted with the mental culpability necessary to commit the crimes charged and that, in furtherance thereof, she solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crimes (see Penal Law § 20.00;  Matter of Aida S., 189 A.D.2d 818, 592 N.Y.S.2d 442;  cf. Matter of Peter J., 184 A.D.2d 511, 584 N.Y.S.2d 195).

A reasonable inference can be drawn from the appellant's close proximity to the principal and the complainant, and the nature of the encounter, that the appellant was aware of the sexual attack taking place, and that the appellant's act of positioning herself in front of the door and then holding the complainant's arms by the wrists, was intended to aid the principal in prolonging the contact and preventing the complainant's escape (see Matter of Erron M., 4 A.D.3d 303, 771 N.Y.S.2d 664;  Matter of Carlos L., 256 A.D.2d 132, 681 N.Y.S.2d 516;  Matter of Aida S., supra).   This uncontroverted evidence was legally sufficient to establish that the appellant shared the intent to commit the acts, which, if committed by an adult, would have constituted the crimes of sexual abuse in the first degree, forcible touching (two counts), sexual abuse in the second degree, unlawful imprisonment in the second degree, and assault in the third degree (see Penal Law §§ 130.65, 130.52, 130.60[2];  see also Penal Law §§ 130.05, 120.00;  Matter of Bruce K., 306 A.D.2d 479, 480, 761 N.Y.S.2d 513;  Matter of Adrian V., 242 A.D.2d 385, 661 N.Y.S.2d 277).   In addition, 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;  cf. People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the appellant committed an act, which, if committed by an adult, would have constituted the crime of criminal facilitation in the fourth degree (see Penal Law § 115.00;  Matter of Joey R., 254 A.D.2d 103, 678 N.Y.S.2d 624;  Matter of Melinda C., 240 A.D.2d 571, 572, 659 N.Y.S.2d 69;  Matter of Andre L., 207 A.D.2d 348, 615 N.Y.S.2d 436).

Moreover, upon the exercise of our factual review power, we are satisfied that the Family Court's findings of fact were not against the weight of the credible evidence (cf. CPL 470.15[2] ).   The minor inconsistencies in the complainant's testimony did not render it unbelievable (see Matter of Kryzstof K., 283 A.D.2d 431, 723 N.Y.S.2d 888;  Matter of George Omar-Saiid C., 272 A.D.2d 399, 707 N.Y.S.2d 367).

 Contrary to the appellant's contention, the Family Court properly chose not to direct an adjournment in contemplation of dismissal (see Family Ct. Act § 315.3), but rather, to adjudge the appellant to be a juvenile delinquent (see Family Ct. Act § 352.1).   The appellant was not entitled to an adjournment in contemplation of dismissal merely because this was her “first brush with the law, or in light of the other mitigating circumstances that she cites” (Matter of Nikita P., 3 A.D.3d 499, 501, 769 N.Y.S.2d 602;  see Matter of Steven R., 230 A.D.2d 745, 646 N.Y.S.2d 60).   The disposition was appropriate in light of, inter alia, the nature of the incident and the recommendations made in the probation report and mental health report (see Matter of Rosario S., 18 A.D.3d 563, 564, 795 N.Y.S.2d 79;  Matter of Gerald W., 12 A.D.3d 522, 523, 784 N.Y.S.2d 626).