IN RE: TEGURE J. (Anonymous)

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

IN RE: TEGURE J. (Anonymous), appellant.

Decided: May 27, 2008

ROBERT A. LIFSON, J.P., HOWARD MILLER, MARK C. DILLON, and RANDALL T. ENG, JJ. Steven Banks, New York, N.Y. (Tamara Steckler and Diane Pazar of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for respondent.

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 (Lubow, J.), dated July 10, 2007, which, upon a fact-finding order of the same court dated April 13, 2007, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of petit larceny and resisting arrest, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months subject to certain conditions.   The appeal brings up for review the fact-finding order dated April 13, 2007.

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

 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 acts which, if committed by an adult, would have constituted the crimes of petit larceny and resisting arrest (see Penal Law §§ 155.25;  205.30).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the finder of fact, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see Matter of Tanasia Elanie E., 49 A.D.3d 642, 853 N.Y.S.2d 380;  Matter of Allison K., 48 A.D.3d 813, 851 N.Y.S.2d 376;  Matter of Charles S., 41 A.D.3d 484, 838 N.Y.S.2d 136).   Upon the exercise of our factual review power (cf. CPL 470.15[5] ), we are satisfied that the Family Court's findings are not against the weight of the evidence.

 Contrary to the appellant's contention, the court providently exercised its discretion in adjudicating him a juvenile delinquent and placing him on probation (see Family Ct. Act § 352.1), rather than directing an adjournment in contemplation of dismissal (see Family Ct. Act § 315.3).   The disposition was appropriate in light of, inter alia, the appellant's poor attendance and performance at school, and the recommendation made in the probation report (see Matter of Michael E., 48 A.D.3d 810, 851 N.Y.S.2d 377;  Matter of Oneil D., 35 A.D.3d 602, 824 N.Y.S.2d 743;  Matter of Cesar E., 32 A.D.3d 1024, 820 N.Y.S.2d 893;  Matter of Gerald W., 12 A.D.3d 522, 523, 784 N.Y.S.2d 626).

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