IN RE: VANNA W. (Anonymous) (2007)

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeals are from (1) a fact-finding order of the Family Court, Kings County (Weinstein, J.), dated March 1, 2006, which, after a hearing, found that the appellant had committed acts, which if committed by an adult, would have constituted the crimes of assault in third degree as a hate crime (four counts) and menacing in the third degree as a hate crime (six counts), and (2) an order of disposition of the same court dated April 10, 2006, which, upon the fact-finding order, adjudicated her a juvenile delinquent and placed her on probation for a period of 12 months.   The appeals bring up for review the denial of that branch of the appellant's omnibus motion which was to suppress identification testimony.

ORDERED that the appeal from the fact-finding order is dismissed, without costs or disbursements, as that order was superseded by the order of disposition and is brought up for review on the appeal from the order of disposition;  and it is further,

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 affirmed insofar as reviewed, without costs or disbursements.

 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 Terrance D., 44 A.D.3d 656, 843 N.Y.S.2d 363;  Matter of Rasahkeliai R., 40 A.D.3d 765, 835 N.Y.S.2d 669;  Matter of Ricky A., 11 A.D.3d 532, 532-533, 782 N.Y.S.2d 855).   However, because there may be collateral consequences resulting from the adjudication of delinquency, that portion of the appeal which brings up for review the fact-finding order is not academic (see Matter of Terrance D., 44 A.D.3d 656, 843 N.Y.S.2d 363;  Matter of Ricky A., 11 A.D.3d at 532-533, 782 N.Y.S.2d 855).

 Viewing the evidence in the light most favorable to the presentment agency (see Matter of Jerrol H., 19 A.D.3d 693, 797 N.Y.S.2d 557;  Matter of Bernell R.W., 7 A.D.3d 724, 776 N.Y.S.2d 813), we find that it was legally sufficient to establish that the appellant committed acts which, if committed by an adult, would have constituted the crimes of assault in the third degree as a hate crime (see Penal Law §§ 120.00[1], 485.05[1][a], [b];  Matter of Sydney N., 42 A.D.3d 539, 540, 840 N.Y.S.2d 128;  Matter of Kristie II., 252 A.D.2d 807, 676 N.Y.S.2d 249;  Matter of Kisha J., 225 A.D.2d 549, 639 N.Y.S.2d 82;  cf. People v. Terrero, 31 A.D.3d 672, 673, 818 N.Y.S.2d 288;  Matter of Anisha McG., 27 A.D.3d 749, 750, 810 N.Y.S.2d 918) and menacing in the third degree as a hate crime (see Penal Law §§ 120.15, 485.05[1][a], [b];  Matter of Shatasia C., 35 A.D.3d 855, 826 N.Y.S.2d 901;  Matter of John F., 12 A.D.3d 509, 510, 784 N.Y.S.2d 607;  cf. Matter of Anisha McG., 27 A.D.3d at 750-751, 810 N.Y.S.2d 918).   Moreover, resolution of issues of credibility is primarily a question to be determined by the factfinder, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see Matter of Rasahkeliai R., 40 A.D.3d at 766, 835 N.Y.S.2d 669;  Matter of Joel G., 39 A.D.3d 644, 645, 832 N.Y.S.2d 677;  cf. People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).   Upon the exercise of our factual review power (cf. CPL 470.15[5] ), we are satisfied that the findings of fact were not against the weight of the evidence (see Matter of Matrice L., 25 A.D.3d 555, 806 N.Y.S.2d 429;  cf. People v. Romero, 7 N.Y.3d at 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

Contrary to the appellant's contention, the showup identification, which was conducted in close geographic and temporal proximity to the incident, was reasonable under the circumstances and not unduly suggestive (cf. People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611;  People v. Clinding, 40 A.D.3d 1117, 837 N.Y.S.2d 708, lv. denied 9 N.Y.3d 874, 842 N.Y.S.2d 786, 874 N.E.2d 753;  Matter of David B., 244 A.D.2d 405, 665 N.Y.S.2d 545).

The appellant's remaining contentions are without merit.