M., DOMINIQUE, MTR. OF ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
776
CAF 10-01628
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF DOMINIQUE M.,
RESPONDENT-APPELLANT.
------------------------------ MEMORANDUM AND ORDER
MONROE COUNTY ATTORNEY,
PETITIONER-RESPONDENT.
ROBERT A. DINIERI, ATTORNEY FOR THE CHILD, CLYDE, FOR
RESPONDENT-APPELLANT.
WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (KELLY G. BARTUS OF
COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Monroe County (Joseph
G. Nesser, J.), entered June 15, 2010 in a proceeding pursuant to
Family Court Act article 3. The order adjudicated respondent a
juvenile delinquent.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent appeals from an order adjudging her to be
a juvenile delinquent based on findings that she committed the crime
of unlawful possession of weapons by persons under 16 (Penal Law §
265.05), which expressly states that a person who violates that
statute shall be adjudged a juvenile delinquent, and committed an act
that, if committed by an adult, would constitute the crime of assault
in the second degree (§ 120.05 [4]). Respondent contends that the
petition against her should have been dismissed because the alleged
acts were not committed within the State of New York and thus that
Family Court lacked jurisdiction over her. We reject that contention
inasmuch as the evidence established that the acts in question were
committed at a gas station at a specified intersection in Monroe
County (see People v Perryman, 178 AD2d 916, 917, lv denied 79 NY2d
1005; see also People v Bize, 30 Misc 3d 68).
Respondent failed to preserve for our review her further
contention that the court acted as a “second prosecutor” in
questioning witnesses (see Matter of Aron B., 46 AD3d 1431), and that
contention is without merit in any event. Although the court
questioned several witnesses, such questioning was nonadversarial and
served only to clarify prior testimony (cf. Matter of Yadiel Roque C.,
17 AD3d 1168, 1169; see generally People v Arnold, 98 NY2d 63, 67;
People v Yut Wai Tom, 53 NY2d 44, 56-57). Finally, even assuming,
arguendo, that respondent is correct that certain evidence was
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CAF 10-01628
improperly admitted in evidence or excluded therefrom, we conclude
that any such errors are harmless (see generally People v Ayala, 75
NY2d 422, 431, rearg denied 76 NY2d 773; People v Crimmins, 36 NY2d
230, 241-242).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court