In re Brian F.

Appellate Division of the Supreme Court of New York

In re Brian F.

298 A.D.2d 193, 748 N.Y.S.2d 50, 2002 N.Y. App. Div. LEXIS 9549

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 10, 2002

StatusPublished

This text of 298 A.D.2d 193 (In re Brian F.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Brian F., 298 A.D.2d 193, 748 N.Y.S.2d 50, 2002 N.Y. App. Div. LEXIS 9549 (N.Y. Ct. App. 2002).

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Opinion

Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about December 11, 2000, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute sexual abuse in the first degree (two counts) and unlawful imprisonment in the second degree, and placed him on probation for a period of 12 months, unanimously modified, on the law and the facts, to the extent of vacating the delinquency adjudications as to one count of sexual abuse and as to unlawful imprisonment and dismissing those counts of the petition, and otherwise affirmed, without costs.

Except as indicated, the court’s finding was based on legally [194]*194sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court’s determinations concerning credibility. The victim’s credible testimony established the charge of sexual abuse based on contact with appellant’s mouth. However, there was no evidence to support the charge that appellant made “sexual contact” with his hand, and thus the count based on such conduct is dismissed. Finally, we dismiss the count of unlawful imprisonment in the second degree based on the doctrine of merger, which the presentment agency commendably concedes applies to these facts. Concur — Tom, J.P., Andrias, Saxe, Buckley and Lerner, JJ.

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Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about December 11, 2000, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute sexual abuse in the first degree (two counts) and unlawful imprisonment in the second degree, and placed him on probation for a period of 12 months, unanimously modified, on the law and the facts, to the extent of vacating the delinquency adjudications as to one count of sexual abuse and as to unlawful imprisonment and dismissing those counts of the petition, and otherwise affirmed, without costs.

Except as indicated, the court’s finding was based on legally [194]*194sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the court’s determinations concerning credibility. The victim’s credible testimony established the charge of sexual abuse based on contact with appellant’s mouth. However, there was no evidence to support the charge that appellant made “sexual contact” with his hand, and thus the count based on such conduct is dismissed. Finally, we dismiss the count of unlawful imprisonment in the second degree based on the doctrine of merger, which the presentment agency commendably concedes applies to these facts. Concur — Tom, J.P., Andrias, Saxe, Buckley and Lerner, JJ.

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Bluebook (online)

298 A.D.2d 193, 748 N.Y.S.2d 50, 2002 N.Y. App. Div. LEXIS 9549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brian-f-nyappdiv-2002.