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In re Jose R.

185 A.D.2d 819 Court N.Y. App. Div. Decision date 1992-08-03 English

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p. 819
In the Matter of Jose R., a Person Alleged to be a Juvenile Delinquent, Appellant.

— In a juvenile delinquency

p. 820
proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Martinez-Perez, J.), dated June 14, 1991, which, upon a fact-finding order of the same court, dated April 1, 1991, finding, after a hearing, that the appellant had committed an act which, if committed by an adult, would have constituted the crime of attempted assault in the third degree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months. The appeal brings up for review the fact-finding order dated April 1, 1991.

Ordered that the order is affirmed, without costs or disbursements.

Although the court failed to apprise the parties before summations that it would be considering attempted assault in the third degree as a lesser included offense of assault in the third degree (see, Family Ct Act § 342.1 [5]; cf., CPL 320.20 [5]), the appellant was in no way prejudiced by the court’s omission. The record establishes that the defense counsel was not deprived of the opportunity to interpose defenses or to make factual arguments relevant to the appellant’s alleged commission of the lesser-included offense. Accordingly, any error which may have occurred was clearly harmless (see, People v Miller, 70 NY2d 903 , 905; People v Jackson, 166 AD2d 356 ; People v Muhammad, 162 AD2d 988 , 989; People v Hampton, 124 AD2d 675 , 676; People v Montgomery, 116 AD2d 671 ). Thompson, J. P., Miller, Pizzuto and Santucci, JJ., concur.

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