Matter of Mikalo D.

Appellate Division of the Supreme Court of New York

Matter of Mikalo D.

136 A.D.3d 590, 25 N.Y.S.3d 595

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

DecidedFebruary 25, 2016

Docket313

StatusPublished

This text of 136 A.D.3d 590 (Matter of Mikalo D.) 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 Mikalo D., 136 A.D.3d 590, 25 N.Y.S.3d 595 (N.Y. Ct. App. 2016).

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Opinion

Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about June 17, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first, second and third degrees, and placed him on probation for 12 months, unanimously modified, on the law, to the extent of vacating the finding as to second-degree sexual abuse and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations. The evidence supports an inference that at least one of the purposes of appellant’s sexual attack on the victim was sexual gratification (see e.g. Matter of Najee A., 26 AD3d 258 [1st Dept 2006], lv denied 7 NY3d 703 [2006]).

As the presentment agency concedes, the second-degree sexual abuse finding should be dismissed as a lesser included offense. However, appellant’s argument for dismissal of the third-degree finding is unavailing.

Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered on or about June 17, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first, second and third degrees, and placed him on probation for 12 months, unanimously modified, on the law, to the extent of vacating the finding as to second-degree sexual abuse and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations. The evidence supports an inference that at least one of the purposes of appellant’s sexual attack on the victim was sexual gratification (see e.g. Matter of Najee A., 26 AD3d 258 [1st Dept 2006], lv denied 7 NY3d 703 [2006]).

As the presentment agency concedes, the second-degree sexual abuse finding should be dismissed as a lesser included offense. However, appellant’s argument for dismissal of the third-degree finding is unavailing.

Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

136 A.D.3d 590, 25 N.Y.S.3d 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mikalo-d-nyappdiv-2016.

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