In re Michael W., A Person Alleged
to be A Juvenile Delinquent, Appellant. Presentment Agency George Gutwirth
SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FIRST DEPARTMENT
295 A.D.2d 134; 742 N.Y.S.2d 828
June 6, 2002, Decided
June 6, 2002, Entered
COUNSEL: For Appellant: George E. Reed, Jr.
JUDGES: Mazzarelli, J.P., Lerner, Rubin, Marlow, Gonzalez, JJ.
OPINION: [*828]
Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.),
entered on or about July 2, 2001, which adjudicated appellant a juvenile
delinquent, upon a fact-finding determination that he committed an act which,
if committed by an adult, would constitute the crime of criminal possession of
a controlled substance in the fifth degree, and placed him with the Office of
Children and Family Services for a period of 18 months, unanimously affirmed,
without costs.
Appellant's suppression motion was properly denied. The record supports the
court's credibility determinations and there is no basis for disturbing them
(see, People v Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d
1380). Although a delinquency proceeding may not be initiated for a violation,
the officer's testimony, credited by the court, established that the police
properly took appellant into custody [*829]
for a violation because he appeared to be over 16 years of age. Therefore, [**2]
the incidental search was lawful (see, Matter of Charles M., 143 A.D.2d 96, 531
N.Y.S.2d 346).
Appellant's admission to a felony drug possession count in satisfaction of the
petition was knowingly and intelligently made, and his mother's allocution was
sufficient (see, Family Ct Act § 321.3[1]), as she was present in the courtroom
throughout appellant's entire allocution, and she expressly ratified her son's
waiver of his rights (see, Matter of Kenneth R., 159 A.D.2d 708, 553 N.Y.S.2d
1013).
We have considered and rejected appellant's remaining claims.
ENTERED: JUNE 6, 2002