                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      521793
________________________________

In the Matter of SKYLAR H.,
   Alleged to be a Juvenile
   Delinquent.

ULSTER COUNTY ATTORNEY,                     MEMORANDUM AND ORDER
                    Respondent;

SKYLAR H.,
                    Appellant.
________________________________


Calendar Date:   April 26, 2016

Before:   Peters, P.J., Lahtinen, Egan Jr., Devine and Mulvey, JJ.

                              __________


     Joseph M. Ingarra, Kingston, for appellant.

      Beatrice Havranek, County Attorney, Kingston (Kristin A.
Gumaer of counsel), for respondent.

                              __________


Devine, J.

      Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered January 26, 2015, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 3, to adjudicate respondent a juvenile delinquent.

      The victim and respondent were at their high school on
September 12, 2014 and, on that date, the victim was 14 years old
and respondent was 15 years old. The two had become friendly
and, after wandering the halls of the school, they sat close to
one another in a quiet hallway and exchanged massages. There is
some dispute as to what transpired next, but the victim recounted
that the two were amiably chatting when respondent abruptly
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kissed her, put his hand up her skirt and touched her vagina over
her underwear. The victim "pushed [respondent] off and told him
no," and left after he attempted to continue. After speaking to
her mother later that day, the victim reported the incident to
school officials.

      An investigation ensued and, in October 2014, respondent
was charged in a petition with committing acts that, if committed
by an adult, would constitute the crime of forcible touching.
Following a fact-finding hearing at which respondent, the victim
and others testified, Family Court credited the victim's
testimony in full and determined that the charge had been
established. Respondent waived a dispositional hearing, and
Family Court adjudicated him to be a juvenile delinquent and
placed him on probation for one year. Respondent now appeals.

      We affirm. Respondent claims that Family Court erred in
crediting the testimony of the victim despite proof that there
were unspecified inconsistencies between two accounts of the
incident she gave to an assistant principal at the school. The
fact that inconsistencies exist between prior statements given by
the victim does not automatically render her hearing testimony
incredible as a matter of law, however, and counsel for
respondent made no effort to establish the nature of the
inconsistencies or cross-examine the victim regarding them (see
Matter of Christian W., 90 AD3d 1062, 1063 [2011]; Matter of
Zachary K., 299 AD2d 755, 756 [2002]; Matter of Manuel W., 279
AD2d 662, 662-663 [2001]).1 Contrary to respondent's contention,
Family Court was under no obligation to independently develop the
record in that regard, as "it is the function of the judge to
protect the record at trial, not to make it" (People v Arnold, 98
NY2d 63, 67 [2002]; accord Matter of Kyle FF., 85 AD3d 1463, 1464


    1
        Respondent does not assert that trial counsel – who is
also representing him on this appeal – was ineffective in failing
to develop the record. Regardless, the silent record here
permits nothing but speculation as to whether there was any
"strategic or legitimate tactical explanation for counsel's
failure to impeach the victim with . . . prior inconsistent
statements" (People v Arnold, 85 AD3d 1330, 1333 [2011]).
                              -3-                  521793

[2011]). Family Court, as a result, did not err as a matter of
law in finding the victim's testimony to be credible. Moreover,
after reviewing the hearing evidence in a neutral light and
according deference to Family Court's assessment of credibility,
we cannot say that its determination was against the weight of
the evidence (see Matter of Juan P., 114 AD3d 460, 460-462
[2014]; Matter of Narvanda S., 109 AD3d 710, 711-712 [2013];
Matter of Jared WW., 56 AD3d 1009, 1010-1011 [2008]; see also
People v Guaman, 22 NY3d 678, 683-684 [2014]).

      Respondent also argues that petitioner impermissibly
vouched for the victim's credibility by asking Family Court in
summation "to credit . . . [her] testimony" because it was
"clear" and "consistent." The record reflects that this issue is
unpreserved for our review, as no objections were made to those
comments before Family Court (see e.g. People v Fiorino, 130 AD3d
1376, 1380 [2015], lv denied 26 NY3d 1087 [2015]). In any event,
inasmuch as Family Court was the finder of fact and is "presumed
capable of rendering dispassionate decisions solely on
appropriate legal criteria," the isolated comments by petitioner
do not require reversal even assuming that they were made in
error (People v Nickel, 14 AD3d 869, 872 [2005], lv denied 4 NY3d
834 [2005]; see People v Shoga, 89 AD3d 1225, 1231 [2011], lv
denied 18 NY3d 886 [2012]).

     Peters, P.J., Lahtinen, Egan Jr. and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
