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IN RE: DELROY S., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: January 14, 2014

SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Holly Cooper of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about October 4, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree, petit larceny, and criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 18 months, unanimously modified, on the facts, to the extent of vacating the findings as to petit larceny and criminal possession of stolen property and dismissing those counts of the petition, and otherwise affirmed, without costs.

The court should have suppressed appellant's statement on the ground that it was the product of custodial interrogation without Miranda warnings. Under the circumstances, a reasonable 11 year old would not have felt free to leave (see Matter of Ricardo S., 297 A.D.2d 255 [1st Dept 2002] ). Nevertheless, the error was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230 [1975] ). Independent of the statement, which added little to the presentment agency's case, there was overwhelming evidence that both established appellant's guilt of the assault and weapon charges and disproved his justification defense. In what began as a fistfight, appellant stabbed his unarmed opponent in the back at a time when appellant clearly had the ability to retreat safely rather than using deadly physical force. We have considered and rejected appellant's arguments concerning his justification defense.

The evidence did not support the inferences that appellant committed the delinquent acts of petit larceny and criminal possession of stolen property in the fifth degree.

Probation was the least restrictive dispositional alternative consistent with appellant's needs and the community's need for protection (see Matter of Katherine W., 62 N.Y.2d 947 [1984] ), particularly in light of the seriousness of the assault.