In re Demetrius B. — 54 A.D.3d 332

Majority

p. 332

In the Matter of Demetrius B., Appellant.

[862 NYS2d 584]

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Weinstein, J.), dated August 8, 2007, which, upon a fact-finding order of the same court dated June 27, 2007, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of gang assault in the second degree and menacing 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 June 27, 2007.

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

A 12-year-old complaining witness is presumed competent to testify (see Family Ct Act § 343.1 [1], [2]; cf. People v Martina, 48 AD3d 1271 , 1272 [2008]; People v Mann, 41 AD3d 977 , 980 [2007]; People v Peppard, 27 AD3d 1143 [2006]; see also CPL

p. 333

60.20 [1], [2]). The appellant failed to overcome that presumption, as the complainant possessed sufficient intelligence and capacity to justify the reception of his testimony, and understood and appreciated the nature of an oath (see Family Ct Act 343.1 [2]; Matter of David PP., 211 AD2d 995 , 996 [1995]; cf. People v Morales, 80 NY2d 450 , 453 [1992]; People v Nisoff, 36 NY2d 560 , 566 [1975]; People v McIver, 15 AD3d 677 , 678 [2005]; People v McCall, 277 AD2d 467 , 468 [2000]; see also CPL 60.20 [2]).

The appellant’s contention regarding an alleged Brady violation (see Brady v Maryland, 373 US 83 [1963]) is unpreserved for appellate review (cf. People v Higgins, 298 AD2d 529 , 530 [2002]; People v Rodriguez, 281 AD2d 644 , 645 [2001]) and, in any event, is without merit (see Strickler v Greene, 527 US 263 [1999]; Matter of Jose A., 44 AD3d 756 , 758 [2007]; cf. People v Campos, 281 AD2d 638 , 639 [2001]). Mastro, J.P., Dillon, Eng and Belen, JJ., concur.

Cases cited

People v. Martina 48 AD3d 1271 N.Y. App. Div. 2008-02-08 at 1272 p. 332
People v. Mann 41 AD3d 977 N.Y. App. Div. 2007-06-14 at 980 p. 332
People v. Peppard 27 AD3d 1143 N.Y. App. Div. 2006-03-17 p. 332
In re David PP. 211 AD2d 995 N.Y. App. Div. 1995-01-26 at 996 p. 333
People v. Morales 80 NY2d 450 N.Y. 1992-12-17 at 453 p. 333
People v. Nisoff 36 NY2d 560 N.Y. 1975-05-08 at 566 p. 333
People v. McIver 15 AD3d 677 N.Y. App. Div. 2005-02-28 at 678 p. 333
Brady v. Maryland 373 US 83 SCOTUS 1963-05-13 p. 333
Strickler v. Greene 527 US 263 SCOTUS 1999-06-17 p. 333
In re Jose A. 44 AD3d 756 N.Y. App. Div. 2007-10-09 at 758 p. 333
People v. Campos 281 AD2d 638 N.Y. App. Div. 2001-03-26 at 639 p. 333