IN RE: DAKYM T. (Anonymous)

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

IN RE: DAKYM T. (Anonymous), appellant.

Decided: April 24, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, JOSEPH COVELLO, and WILLIAM E. McCARTHY, JJ. Ralph Duthely, Jamaica, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal 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 June 6, 2006, which, upon so much of a fact-finding order of the same court dated April 11, 2006, made after a hearing, as found that the appellant had committed acts which, if committed by an adult, would have constituted the crime of unauthorized use of a vehicle in the third degree, adjudged him to be a juvenile delinquent and placed him in the custody of the New York State Office of Children and Family Services for a period of 12 months, less the time spent in detention pending disposition.   The appeal brings up for review so much of the fact-finding order dated April 11, 2006, as concerned the crime of unauthorized use of a vehicle in the third degree.

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

Contrary to the appellant's contention, the Family Court had subject matter jurisdiction.   Moreover, the nonhearsay allegations of the petition and supporting depositions established every element of the charged crime of unauthorized use of a vehicle in the third degree (see Matter of Jermaine G., 38 A.D.3d 105, 828 N.Y.S.2d 160;  cf. Matter of Jamel E., 33 A.D.3d 797, 798, 823 N.Y.S.2d 194).

Viewing the evidence in the light most favorable to the presentment agency (see Matter of Shaquana S., 9 A.D.3d 466, 467, 780 N.Y.S.2d 179;  Matter of James B., 262 A.D.2d 480, 481, 692 N.Y.S.2d 417;  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, beyond a reasonable doubt, that the appellant committed acts, which if committed by an adult, would have constituted the crime of unauthorized use of a vehicle in the third degree.   The appellant's unauthorized use of the vehicle in question can be inferred from the circumstances surrounding the incident (see People v. Borrero, 26 N.Y.2d 430, 435, 311 N.Y.S.2d 475, 259 N.E.2d 902;  People v. Lydon, 33 A.D.3d 335, 336, 821 N.Y.S.2d 590;  Matter of Basille N., 228 A.D.2d 323, 325, 644 N.Y.S.2d 233;  People v. Malik, 221 A.D.2d 567, 567-568, 634 N.Y.S.2d 146;  Matter of Aaron H., 206 A.D.2d 426, 427, 614 N.Y.S.2d 440).   The appellant failed to rebut the presumption of unauthorized use (see Penal Law § 165.05 [1];  People v. Simmons, 32 N.Y.2d 250, 252, 344 N.Y.S.2d 897, 298 N.E.2d 76).   Moreover, upon the exercise of our factual review power (cf. CPL 470.15 [5] ), we are satisfied that the determination was not against the weight of the evidence (see Matter of Lenford C., 35 A.D.3d 462, 826 N.Y.S.2d 894).

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