Matter of Nyree R.

Appellate Division of the Supreme Court of New York

Matter of Nyree R.

132 A.D.3d 526, 17 N.Y.S.3d 856

Appellate Division of the Supreme Court of the State of New York·Decided October 20, 2015·No. 15911·Published

Opinion

*527 Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered March 31, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of endangering the welfare of a child, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

The court’s finding was supported by 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. Evidence that appellant exposed his penis in front of the three-year-old victim, only 10 inches from the child’s face, supported the conclusion that appellant acted in a manner likely to cause harm to the child (see Penal Law § 260.10 [1]; People v Simmons, 92 NY2d 829 [1998]). The circumstances of the incident could reasonably be interpreted as evincing appellant’s consciousness of guilt, and demonstrating his knowledge that his conduct was likely to cause harm.

The court properly admitted an out-of-court statement by the nontestifying victim, because it qualified as an excited utterance (see People v Edwards, 47 NY2d 493 [1979]). In any event, any error in this regard was harmless. We note that the court made no mention of this evidence in its detailed findings of fact, which marshaled the other evidence.

Concur — Gonzalez, P.J., Mazzarelli, Richter and Manzanet-Daniels, JJ.

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*527 Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J.), entered March 31, 2014, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of endangering the welfare of a child, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

The court’s finding was supported by 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. Evidence that appellant exposed his penis in front of the three-year-old victim, only 10 inches from the child’s face, supported the conclusion that appellant acted in a manner likely to cause harm to the child (see Penal Law § 260.10 [1]; People v Simmons, 92 NY2d 829 [1998]). The circumstances of the incident could reasonably be interpreted as evincing appellant’s consciousness of guilt, and demonstrating his knowledge that his conduct was likely to cause harm.

The court properly admitted an out-of-court statement by the nontestifying victim, because it qualified as an excited utterance (see People v Edwards, 47 NY2d 493 [1979]). In any event, any error in this regard was harmless. We note that the court made no mention of this evidence in its detailed findings of fact, which marshaled the other evidence.

Concur — Gonzalez, P.J., Mazzarelli, Richter and Manzanet-Daniels, JJ.

Matter of Nyree R., 132 A.D.3d 526, 17 N.Y.S.3d 856 (N.Y. Ct. App. 2015).

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