In re Leon C.

133 A.D.2d 629, 519 N.Y.S.2d 737, 1987 N.Y. App. Div. LEXIS 51668

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1987
• Status: Published

Opinion

— In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Thorpe, J.), dated May 9, 1986, which, following a fact-finding order dated March 24, 1986, made after a hearing, found that appellant had committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the third degree, and imposed a 12-month term of probation. The appeal brings up for review the fact-finding order dated March 24, 1986.

Ordered that the order of disposition is affirmed, without costs or disbursements.

The evidence adduced at this hearing, including the circumstantial evidence, was legally sufficient to find that the appellant committed acts which, if committed by an adult, would have constituted the crime of grand larceny in the third degree (see, People v Borrero, 26 NY2d 430; People v Wright, 68 AD2d 930). Upon the exercise of our factual review power, we are satisfied that the evidence established that the appellant committed acts sufficient to convict him of grand larceny in the third degree beyond a reasonable doubt and that the court’s fact-finding determination was not against the weight of the evidence (cf., CPL 470.15 [5]).

Further, the court did not err in declining to draw an adverse inference due to the presentment agency’s failure to call the complainant. It appears that the complainant, a minor at the time of the hearing, did not reside in New York and was not under the control of the presentment agency (see, People v Walker, 105 AD2d 720; People v Griffin, 100 AD2d 659). Lawrence, J. P., Eiber, Spatt and Sullivan, JJ., concur.