IN RE: KEDNE L. (Anonymous)

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

IN RE: KEDNE L. (Anonymous), appellant.

Decided: November 27, 2007

HOWARD MILLER, J.P., DAVID S. RITTER, PETER B. SKELOS and JOSEPH COVELLO, JJ. Paul Aronson, New York, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Scott Shorr 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, Kings County (Weinstein, J.), dated April 18, 2006, which, upon a fact-finding order of the same court dated March 1, 2006, made after a hearing, finding 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 (four counts) and menacing in the third degree as a hate crime (six counts), adjudged her to be a juvenile delinquent and placed her on probation for a period of 12 months.   The appeal brings up for review the fact-finding order dated March 1, 2006, and the denial of that branch of the appellant's omnibus motion which was to suppress identification testimony.

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.

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