In re Dwayne B.

Appellate Division of the Supreme Court of New York

In re Dwayne B.

118 A.D.2d 705, 500 N.Y.S.2d 44, 1986 N.Y. App. Div. LEXIS 54565

Appellate Division of the Supreme Court of the State of New York·Decided March 17, 1986·Published·Cited by 1 cases

Opinion

— In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (De Phillips, J.), dated June 20, 1984, which, upon a fact-finding order of the same court dated May 9, 1984, made after a hearing finding that appellant had committed an act which, if committed by an adult, would have constituted the crime of jostling, adjudged him to be a juvenile delinquent and placed him on probation for a term of one year.

Order of disposition affirmed, without costs or disbursements.

While the Family Court should not have considered the appellant’s failure to call an eyewitness who was not in the appellant’s control (see, People v Rodriguez, 38 NY2d 95, 98), inasmuch as the appellant testified on his own behalf, any inference that the Family Court may have made was a non-constitutional error (see, People v Rodriguez, supra, at p 99). Under the facts of this case, we find no reason to disturb the Family Court’s findings with respect to credibility (see, People v Carter, 63 NY2d 530, 539; Matter of Dennis N., 110 AD2d 703; People v Gruttola, 43 NY2d 116, 122) and since the evidence of appellant’s culpability was overwhelming, any error was harmless (see, People v Crimmins, 36 NY2d 230, 241-242). Brown, J. P., Weinstein, Niehoff and Eiber, JJ., concur.

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— In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (De Phillips, J.), dated June 20, 1984, which, upon a fact-finding order of the same court dated May 9, 1984, made after a hearing finding that appellant had committed an act which, if committed by an adult, would have constituted the crime of jostling, adjudged him to be a juvenile delinquent and placed him on probation for a term of one year.

Order of disposition affirmed, without costs or disbursements.

While the Family Court should not have considered the appellant’s failure to call an eyewitness who was not in the appellant’s control (see, People v Rodriguez, 38 NY2d 95, 98), inasmuch as the appellant testified on his own behalf, any inference that the Family Court may have made was a non-constitutional error (see, People v Rodriguez, supra, at p 99). Under the facts of this case, we find no reason to disturb the Family Court’s findings with respect to credibility (see, People v Carter, 63 NY2d 530, 539; Matter of Dennis N., 110 AD2d 703; People v Gruttola, 43 NY2d 116, 122) and since the evidence of appellant’s culpability was overwhelming, any error was harmless (see, People v Crimmins, 36 NY2d 230, 241-242). Brown, J. P., Weinstein, Niehoff and Eiber, JJ., concur.

In re Dwayne B., 118 A.D.2d 705, 500 N.Y.S.2d 44, 1986 N.Y. App. Div. LEXIS 54565 (N.Y. Ct. App. 1986).

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Opinion

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