Matter of Brian S.M

Appellate Division of the Supreme Court of New York, Fourth DepartmentOct 2, 2003
764 N.Y.S.2d 755 (N.Y. App. Div. 2003)
764 N.Y.S.2d 755309 A.D.2d 1224

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CAF 02-00543

October 2, 2003.

Appeal from an order of Family Court, Wayne County (Keenan, J.), entered December 19, 2001, which adjudged that respondent is a juvenile delinquent and placed him under probation supervision for a 24-month period.

CYNTHIA B. BRENNAN, AUBURN, FOR RESPONDENT-APPELLANT.

DANIEL M. WYNER, COUNTY ATTORNEY, LYONS (JOHN W. GIBBON, II, OF COUNSEL), PETITIONER-RESPONDENT PRO SE.

PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.


MEMORANDUM AND ORDER

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

Memorandum:

Respondent was adjudicated a juvenile delinquent based on Family Court's finding that he committed acts that, if committed by an adult, would constitute the crime of sexual abuse in the first degree (Penal Law 130.65). At the fact-finding hearing, petitioner offered in evidence respondent's statement containing admissions to the acts alleged in the petition and the transcript of a colloquy between the court and a co-respondent. Respondent's attorney stipulated those documents into evidence, and petitioner rested. In a juvenile delinquency proceeding, as in a criminal court proceeding, admissions of respondents as well as statements of accomplices must be corroborated ( see Family Ct Act 343.2; 344.2 [3]; see also CPL 60.22; 60.50). Here, respondent's admissions were corroborated by the colloquy of the co-respondent, and that colloquy, which took the place of live testimony, was corroborated by respondent's admissions ( see People v. Burgin, 40 N.Y.2d 953, 954; see also People v. Manzi, 292 A.D.2d 849, lv denied 98 N.Y.2d 653; People v. Dawson, 249 A.D.2d 977, 978, lv denied 93 N.Y.2d 872). We thus conclude that the finding of delinquency is supported by legally sufficient evidence, and we further conclude that it is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495; People v. Schenk, 294 A.D.2d 914, lv denied 98 N.Y.2d 702).

We reject the contention of respondent that he was denied effective assistance of counsel based on his Law Guardian's failure to move to dismiss the petition for lack of corroborative evidence. Respondent has failed to demonstrate the absence of strategic or other legitimate explanations for the Law Guardian's failure to argue that ground in moving to dismiss the petition ( see People v. Rivera, 71 N.Y.2d 705, 709). "[T]he record establishes that, viewed in the totality of the proceedings, [respondent] received meaningful representation by his Law Guardian" ( Matter of Jeffrey V., 82 N.Y.2d 121, 126; see generally People v. Baldi, 54 N.Y.2d 137, 146-147).