In re Javen C.
Matter of Javen C.
2008 NY Slip Op 09595
Decided on December 2, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 2, 2008
SUPREME COURT OF THE STATE OF
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DAVID S. RITTER, J.P.
ANITA R. FLORIO
MARK C. DILLON, JJ.
(Docket No. D-6557-07)
[*1]In the Matter of Javen C. (Anonymous), appellant.
George E. Reed, Jr.,
Charlene M. Indelicato,
(Stacey Dolgin-Kmetz and Justin R.
Adin of counsel), for respondent.
DECISION & ORDER
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of fact-finding and disposition (one paper) of the Family Court, Westchester County (Klein, J.), dated December 13, 2007, made after a hearing, which found that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal possession of marijuana in the fifth degree, adjudged him to be a juvenile delinquent, and placed him on probation for a period of 12 months from October 31, 2007, to October 31, 2008.
ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the appellant on probation for a period of 12 months from October 31, 2007, to October 31, 2008, is dismissed, without costs or disbursements, as the period of probation has expired (see Matter of Daniel R., 51 AD3d 933); and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
Contrary to the appellant's contention, the petition was not facially deficient. The petition contained evidentiary allegations as to each element of the underlying offense (see Penal Law § 221.10), including a sworn police report and a sworn laboratory report bearing the applicable police incident number, stating that the evidence was received by the lab from the arresting officer and subsequently found to be marijuana [*2](see Family Ct Act § 311.1; § 311.2; Matter of Jonathan T., 247 AD2d 482; see also CPLR 3020[a]).
The Family Court did not err in denying that branch of the
appellant's pretrial motion which sought to preclude police testimony. Although
the appellant contends that he was improperly questioned by police, he does not
allege that this incident yielded a statement or any other evidence that was
sought to be introduced or actually introduced at the fact-finding hearing.
Thus, there is no basis for suppression of the police testimony (see People v
Burr, 70 NY2d 354, 362, cert denied 485 US 989). The Family Court also did not
err in quashing the appellant's subpoena for the memo book of one of the
arresting officers. That item was not a prior statement of a witness, since
that officer did not testify at the fact-finding hearing (see People v
The Family Court did not improvidently exercise its discretion
in finding that the forensic scientist possessed the requisite skill, training,
education, knowledge, or expertise to render a reliable opinion as to the
identity of the material seized upon the appellant's arrest (see People v
Menendez, 50 AD3d 1061). Further, the evidence provided reasonable assurances
as to the chain of custody of the material in question (see People v Julian, 41
NY2d 340, 343; People v
Viewing the evidence in the light most favorable to the Presentment Agency (see Matter of David H., 69 NY2d 792, 793; Matter of Charles S., 41 AD3d 484, 485), we find that it was legally sufficient to support the finding that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal possession of marijuana in the fifth degree (see Penal Law § 221.10). Upon our independent factual review, we are satisfied that the Family Court's findings of fact were not against the weight of the evidence (cf. CPL 470.15).
The appellant's remaining contentions are without merit.
RITTER, J.P., FLORIO, MILLER and DILLON, JJ., concur.
James Edward Pelzer
Clerk of the Court