IN RE: BRANDON S.M.

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

IN RE: BRANDON S.M., Respondent-Appellant. Livingston County Attorney, Petitioner-Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, GORSKI, CENTRA, AND GREEN, JJ. Charles Plovanich, Law Guardian, Rochester, for Respondent-Appellant. David J. Morris, County Attorney, Geneseo (Wendy S. Sisson of Counsel), for Petitioner-Respondent.

Respondent appeals from an order adjudicating him to be a juvenile delinquent based on findings that he committed acts that, if committed by an adult, would constitute the crimes of forcible touching (Penal Law § 130.52) and sexual abuse in the first degree (§ 130.65[1] ).   Respondent failed to preserve for our review his contention that the evidence is legally insufficient to support the finding of forcible touching (see Matter of Matthew M.R., 37 A.D.3d 1135, 830 N.Y.S.2d 423).   In any event, “the evidence presented at the hearing, when viewed in the light most favorable to the presentment agency ․, is legally sufficient to prove beyond a reasonable doubt that respondent committed the acts alleged in the petition” (Matter of Zachary R.F., 37 A.D.3d 1073, 827 N.Y.S.2d 904;  see Matter of Troy J., 22 A.D.3d 581, 804 N.Y.S.2d 322).

Respondent also failed to preserve for our review his contention that Family Court's finding with respect to forcible touching must be vacated and that count dismissed because it is duplicitous and violates Family Court Act § 311.1(3)(d), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see generally People v. McAllister, 41 A.D.3d 1186, 837 N.Y.S.2d 802;  People v. Ferguson, 21 A.D.3d 1415, 801 N.Y.S.2d 655, lv. denied 6 N.Y.3d 753, 810 N.Y.S.2d 421, 843 N.E.2d 1161;  People v. Parker, 2 A.D.3d 1282, 768 N.Y.S.2d 903, lv. denied 2 N.Y.3d 744, 778 N.Y.S.2d 469, 810 N.E.2d 922).   We reject the further contention of respondent that the Law Guardian failed to provide meaningful representation.   Contrary to respondent's contention, the Law Guardian was not ineffective in failing to present testimony that the incidents did not occur.   The victim testified that there were no witnesses to the incidents, and respondent himself could not establish that he was not present when the incidents occurred.   The record establishes that the cross-examination of the victim by the Law Guardian raised issues with respect to the victim's credibility and that the Law Guardian had a coherent and reasonable trial strategy, and we thus conclude that respondent was not denied effective assistance of counsel (see Matter of Jeffrey V., 82 N.Y.2d 121, 126-127, 603 N.Y.S.2d 800, 623 N.E.2d 1150;  Matter of Michael DD., 33 A.D.3d 1185, 1186-1187, 823 N.Y.S.2d 284;   Matter of Shaheen P.J., 29 A.D.3d 996, 997-998, 817 N.Y.S.2d 304).   We have considered respondent's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: