In re Michael W., A Person Alleged to be A Juvenile Delinquent, Appellant. Presentment Agency George Gutwirth



295 A.D.2d 134; 742 N.Y.S.2d 828


June 6, 2002, Decided  
June 6, 2002, Entered

COUNSEL: For Appellant: George E. Reed, Jr.

JUDGES: Mazzarelli, J.P., Lerner, Rubin, Marlow, Gonzalez, JJ.

OPINION:  [*828] 

Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about July 2, 2001, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime of criminal possession of a controlled substance in the fifth degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously affirmed, without costs.

Appellant's suppression motion was properly denied. The record supports the court's credibility determinations and there is no basis for disturbing them (see, People v Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380). Although a delinquency proceeding may not be initiated for a violation, the officer's testimony, credited by the court, established that the police properly took appellant into custody  [*829]  for a violation because he appeared to be over 16 years of age. Therefore,  [**2]  the incidental search was lawful (see, Matter of Charles M., 143 A.D.2d 96, 531 N.Y.S.2d 346).

Appellant's admission to a felony drug possession count in satisfaction of the petition was knowingly and intelligently made, and his mother's allocution was sufficient (see, Family Ct Act 321.3[1]), as she was present in the courtroom throughout appellant's entire allocution, and she expressly ratified her son's waiver of his rights (see, Matter of Kenneth R., 159 A.D.2d 708, 553 N.Y.S.2d 1013).

We have considered and rejected appellant's remaining claims.



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