Matter of Eduardo V.

Appellate Division of the Supreme Court of New York

Matter of Eduardo V.

138 A.D.3d 501, 28 N.Y.S.3d 308

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

DecidedApril 12, 2016

Docket805 804

StatusPublished

This text of 138 A.D.3d 501 (Matter of Eduardo V.) 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

Matter of Eduardo V., 138 A.D.3d 501, 28 N.Y.S.3d 308 (N.Y. Ct. App. 2016).

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Opinion

Orders of disposition, Family Court, Bronx County (Monica *502 Brinane, J.), entered on or about April 10, 2014, which adjudicated appellant a juvenile delinquent upon fact-finding determinations that he committed acts that, if committed by an adult, would constitute the crimes of robbery in the second degree, two counts of petit larceny and two counts of criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

The court’s findings regarding two separate incidents were based on legally sufficient evidence and were not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). In the shoplifting incident, appellant’s behavior clearly demonstrated that he intended to leave the store with merchandise, but without paying for it (see People v Olivo, 52 NY2d 309, 318 [1981]). The court properly declined to sanction the presentment agency for not obtaining a surveillance videotape made, and then erased, by the store where the incident occurred (see People v Walloe, 88 AD3d 544 [1st Dept 2011], lv denied 18 NY3d 963 [2012]).

In the robbery incident, there is no basis for disturbing the court’s determinations concerning identification and credibility. Appellant’s missing witness argument is unpreserved, and in any event it does not warrant a different conclusion regarding the sufficiency and weight of the evidence.

Concur — Tom, J.P., Andrias, Manzanet-Daniels, Kapnick and Gesmer, JJ.

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Orders of disposition, Family Court, Bronx County (Monica *502 Brinane, J.), entered on or about April 10, 2014, which adjudicated appellant a juvenile delinquent upon fact-finding determinations that he committed acts that, if committed by an adult, would constitute the crimes of robbery in the second degree, two counts of petit larceny and two counts of criminal possession of stolen property in the fifth degree, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

The court’s findings regarding two separate incidents were based on legally sufficient evidence and were not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). In the shoplifting incident, appellant’s behavior clearly demonstrated that he intended to leave the store with merchandise, but without paying for it (see People v Olivo, 52 NY2d 309, 318 [1981]). The court properly declined to sanction the presentment agency for not obtaining a surveillance videotape made, and then erased, by the store where the incident occurred (see People v Walloe, 88 AD3d 544 [1st Dept 2011], lv denied 18 NY3d 963 [2012]).

In the robbery incident, there is no basis for disturbing the court’s determinations concerning identification and credibility. Appellant’s missing witness argument is unpreserved, and in any event it does not warrant a different conclusion regarding the sufficiency and weight of the evidence.

Concur — Tom, J.P., Andrias, Manzanet-Daniels, Kapnick and Gesmer, JJ.

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138 A.D.3d 501, 28 N.Y.S.3d 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-eduardo-v-nyappdiv-2016.

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