In re Devon A.
Ordered that the order of disposition is affirmed, without costs or disbursements.
The presentment agency filed a juvenile delinquency petition dated May 24, 2007, which charged the appellant and his brother with having committed acts on April 22, 2007, which, if committed by an adult, would have constituted the crimes of, among other things, attempted robbery in the second and third degrees, attempted grand larceny in the fourth degree, and attempted assault in the second and third degrees.
The petition was supported with the sworn statement of a named undercover police officer who asserted, inter alia, that on April 22, 2007 at 12:47 a.m., at the intersection of Redfern and Mott Avenues in Queens, he observed the subjects of the petition and an adult male punch, kick, and attempt to rob a male victim, causing him to fall to the ground, and to continue the attack while the victim was lying on the ground. The victim sustained an abrasion under his eye, which was bleeding.
Contrary to the appellant‘s contention, the officer‘s identification of the appellant as one of the perpetrators “occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure” (People v Wharton, 74 NY2d 921, 922-923 [1989]). Moreover, “[t]he risk of undue suggestiveness is obviated” since the officer‘s “observation of the [appellant]” during the commission of the crimes, within very close proximity and without obstructions, and his identification of the appellant within minutes, at the scene, was “so clear that the identification could not be mistaken” (People v Boyer, 6 NY3d 427, 432 [2006]). Accordingly, the notice and hearing requirements of
The Family Court properly denied the appellant‘s request for a negative inference to be drawn as a result of the complainant‘s failure to testify. Despite learning on October 18, 2007, that the presentment agency would not be calling the complainant as a witness, the appellant failed to request that the Family Court draw a negative inference until October 3, 2008, after both sides had rested and the presentment agency had completed its case
Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792, 793 [1987]; Matter of Ashley P., 74 AD3d 1075, 1075-1076 [2010]; Matter of Eddie J., 68 AD3d 870 [2009]; cf. People v Contes, 60 NY2d 620, 621 [1983]), we find it was legally sufficient to support the finding that the appellant engaged in conduct which, if committed by an adult, would have constituted the crime of attempted robbery in the second degree, attempted assault in the second degree, attempted assault in the third degree, and attempted grand larceny in the fourth degree. Moreover, in conducting an independent review of the weight of the evidence (cf.