Matter of Donte W.

Matter of Donte W. 2012 NY Slip Op 06756 Decided on October 9, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012
Saxe, J.P., Sweeny, Richter, Abdus-Salaam, Román, JJ.
8247

[*1]In re Donte W., A Person Alleged to be a Juvenile Delinquent, Appellant.

Presentment Agency


Kenneth M. Tuccillo, Hastings on Hudson, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (William
K. Chang of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about July 6, 2011, 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 attempted assault in the third degree, and placed him with the Office of Children and Family Services for a period of 12 months, unanimously 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 determinations concerning credibility.
The evidence supports the inference that appellant, while acting in concert with other persons, attacked the victim with the intent to injure him.

Appellant challenges a 911 call, in which a nontestifying declarant describes the ongoing incident and refers to appellant by name, as violating his right of confrontation and his right to notice of an identification procedure. Initially, we note that the court struck from evidence the reference to appellant, and that a judge sitting as trier of fact is presumed capable of disregarding inadmissible evidence (see People v Moreno, 70 NY2d 403, 405-406 [1987]). In any event, there was no Confrontation Clause violation because the call was made "to enable police assistance to meet an ongoing emergency" (Davis v Washington, 547 US 813, 822 [2006]), and there was no need for notice under Family Court Act § 330.2(2) because there was no identification within the meaning of CPL 710.30(1)(b) (see People v Irick, 145 AD2d 507 [2d Dept 1988], lv denied 73 NY2d 978 [1989]). Moreover, the reference to appellant on the tape was cumulative to other evidence.

The placement was a proper exercise of the court's discretion, and it constituted the least restrictive alternative
consistent with appellant's needs and best interests and the community's need for protection (see Matter of Katherine W., 62 NY2d 947 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: OCTOBER 9, 2012

CLERK