        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
