SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1028 

CAF 13-02021 

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF SHANNON F., 

RESPONDENT-APPELLANT. 

---------------------------- MEMORANDUM AND ORDER 

ONONDAGA COUNTY ATTORNEY, 

PETITIONER-RESPONDENT. 

SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS, FOR

RESPONDENT-APPELLANT. 

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (POLLY E. JOHNSON OF

COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from an order of the Family Court, Onondaga County

(Michele Pirro Bailey, J.), entered October 29, 2013 in a proceeding

pursuant to Family Court Act article 3. The order adjudged that

respondent is a juvenile delinquent and placed him on probation. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondent appeals from an order of disposition

adjudicating him a juvenile delinquent based on the finding that he

had committed acts that, if committed by an adult, would constitute

the crimes of forcible touching (Penal Law § 130.52) and endangering

the welfare of a child (§ 260.10). Even assuming, arguendo, that

respondent preserved for our review his contention that the evidence

is legally insufficient to establish that he committed those acts by

arguing that the victim’s testimony was inconsistent with that of the

eyewitness, we reject that contention. Viewing the evidence in the

light most favorable to the presentment agency, we conclude that the

evidence is legally sufficient to establish that respondent committed

acts that, if he were an adult, would constitute the crimes of

forcible touching (see People v Bartlett, 89 AD3d 1453, 1454, lv

denied 18 NY3d 881) and endangering the welfare of a child (see

generally People v Sanderson, 68 AD3d 1716, 1717, lv denied 14 NY3d

844; People v Russell, 50 AD3d 1569, 1569, lv denied 10 NY3d 939). 

Moreover, upon the exercise of our independent power of factual

review, we are satisfied that Family Court properly credited the

testimony of the two principal witnesses and that its findings are not

against the weight of the evidence (see generally Matter of Anthony

S., 305 AD2d 689, 690). “[R]esolution of issues of credibility, as

well as the weight to be accorded the evidence presented, are

primarily questions to be determined by the finder of fact, which saw

and heard the witnesses” (Matter of Stephen C., 28 AD3d 656, 656; see
-2- 1028 

CAF 13-02021 

Matter of Kayla C. [appeal No. 1], 35 AD3d 1187, 1187).

Respondent failed to preserve for our review his contention that

the court’s actions, including, inter alia, its extensive

participation in the questioning of witnesses, deprived him of a fair

trial (see People v Charleston, 56 NY2d 886, 887-888; Matter of Aron

B., 46 AD3d 1431, 1431). In any event, that contention is without

merit (cf. People v Yut Wai Tom, 53 NY2d 44, 57-58). Respondent also

failed to preserve for our review his contention that he is entitled

to a new hearing or dismissal of the petition because the appearance

ticket did not conform to Family Court Act § 307.1 (1). We decline to

exercise our power to review that contention in the interest of

justice (see Matter of George N.B., 57 AD3d 1456, 1456-1457, lv

denied 12 NY3d 706). 

We reject the contention of respondent that he was denied

effective assistance of counsel. “[T]he record establishes that,

viewed in the totality of the proceedings, [respondent] received

meaningful representation” (Matter of Jeffrey V., 82 NY2d 121, 126;

see George N.B., 57 AD3d at 1457). 

We reject the further contention of respondent that the court

failed to consider the least restrictive available alternative in

placing him on probation (see Family Ct Act § 352.2 [2] [a]). “The

court has broad discretion in determining the appropriate disposition

in juvenile delinquency cases” (Matter of Richard W., 13 AD3d 1063,

1064). Contrary to respondent’s contention, “the record establishes

that the disposition ordered by the court is ‘the least restrictive

available alternative . . . which is consistent with the needs and

best interests of the respondent and the need for protection of the

community’ ” (Matter of Brendon H., 43 AD3d 1283, 1284, quoting §

352.2 [2] [a]). 

We have considered respondent’s remaining contentions, and we

conclude that they are without merit.

Entered: October 3, 2014 Frances E. Cafarell

Clerk of the Court