IN RE: JOSE A. (Anonymous) (2007)

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from (1) a decision of the Family Court, Suffolk County (Kelly, J.), dated February 16, 2007, and (2) an order of fact-finding and disposition of the same court dated February 16, 2007, made after a hearing, which, inter alia, found that the appellant had committed an act which, if committed by an adult, would have constituted the crime of aggravated sexual abuse in the second degree, adjudged him to be a juvenile delinquent, and placed him with the Office of Children and Family Services for a period of 18 months.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Family Ct. Act § 1112;  Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

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

 Contrary to the appellant's contentions, viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621;  People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932;  Matter of Jamal C., 186 A.D.2d 562, 588 N.Y.S.2d 369), we find that it was legally sufficient to establish, beyond a reasonable doubt, the “physical injury” element of aggravated sexual abuse in the second degree (see Penal Law § 130.67[a] ).   “Physical injury” is defined as “impairment of physical condition” or “substantial pain” (Penal Law § 10.00 [9] ).   The complainant's testimony established that the appellant's action of putting his fingers in her vagina “hurt” so badly that she was unable to move her legs, felt the need to lie down, and was taken to the hospital.   She further testified that she continued to feel pain for “[a]bout two or three days after” and that “[i]t burned” when she urinated.   This evidence was sufficient to support the determination that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9) (see Matter of Ashley M., 35 A.D.3d 612, 613, 825 N.Y.S.2d 748;  cf. People v. Tomczak, 189 A.D.2d 926, 927, 592 N.Y.S.2d 486;  People v. Soto, 184 A.D.2d 673, 674, 584 N.Y.S.2d 877;  People v. Coward, 100 A.D.2d 628, 473 N.Y.S.2d 591).   Contrary to the appellant's contention, any discrepancies between the testimony of the complainant and other witnesses raised issues of credibility for the trier of fact to determine (cf. People v. Johnston, 273 A.D.2d 514, 519, 709 N.Y.S.2d 230) and did not render the complainant's testimony incredible as a matter of law (see Matter of Benjamin J., 10 A.D.3d 608, 609, 781 N.Y.S.2d 670;  Matter of Learnel W., 211 A.D.2d 727, 622 N.Y.S.2d 81).

 The appellant's contention that the presentment agency failed to timely turn over Brady material (see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) is without merit.   To be deemed Brady material, the material must be exculpatory and within the possession, custody, or control of the prosecution (see People v. Hearns, 33 A.D.3d 722, 821 N.Y.S.2d 907;  People v. Carnett, 19 A.D.3d 703, 798 N.Y.S.2d 90).   In the instant case, there was no Brady violation with regard to the presentment agency's failure to produce a surveillance videotape because there is no evidence that the presentment agency possessed this videotape (see People v. Hearns, 33 A.D.3d at 722, 821 N.Y.S.2d 907;  People v. Carnett, 19 A.D.3d at 703, 798 N.Y.S.2d 90).   Nor was there any Brady violation with regard to the complainant's medical records.   There is no evidence that the presentment agency failed to timely disclose these records, which were not in its possession until just prior to the fact-finding hearing, at which time they were promptly forwarded to the appellant's counsel (see People v. Darling, 276 A.D.2d 922, 923, 714 N.Y.S.2d 393).   Furthermore, the appellant's attorney was given a meaningful opportunity to use the medical records either to cross-examine the presentment agency's witnesses or to use as evidence during his case (see People v. Cortijo, 70 N.Y.2d 868, 870, 523 N.Y.S.2d 463, 517 N.E.2d 1349;  People v. Myron, 28 A.D.3d 681, 684, 814 N.Y.S.2d 198).

The Family Court providently exercised its discretion in placing the appellant with the Office of Children and Family Services for a period of 18 months.   The Family Court has broad discretion in entering dispositional orders (see Family Ct. Act § 141).   The court is required to choose the least restrictive available alternative consistent with the needs and best interests of the juvenile and the need for the protection of the community (see Family Ct. Act § 352.2[a];  Matter of Benjamin J., 10 A.D.3d 608, 781 N.Y.S.2d 670;  Matter of Naiquan T., 265 A.D.2d 331, 696 N.Y.S.2d 79;  Matter of Jamil W., 184 A.D.2d 513, 584 N.Y.S.2d 194).   On this record there is no basis to disturb the Family Court's determination (see Matter of Katherine W., 62 N.Y.2d 947, 479 N.Y.S.2d 190, 468 N.E.2d 28;  Matter of Manuel B., 34 A.D.3d 463, 823 N.Y.S.2d 348;  Matter of Carliph T., 26 A.D.3d 440, 808 N.Y.S.2d 909).