Matter of Shannel P. (2014 NY Slip Op 50687(U))

Matter of Shannel P.

2014 NY Slip Op 50687(U) [43 Misc 3d 1217(A)]

Decided on April 28, 2014

Family Court, Queens County

Hunt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

By order dated January 29, 2014 and upon the fact-finding hearing conducted in

accordance with Family Court Act §342.1, this Court found by proof beyond a reasonable doubt

(Fam. Ct. Act §342.2 [2]) that respondent, Shannel P., committed acts which,were she an adult,

would constitute the crimes of Overdriving, Torturing and Injuring Animals; Failure to Provide

Proper Sustenance (Agriculture and Markets Law §353) and Aggravated Cruelty to Animals

(Agriculture and Markets Law §353-a [1]).

Respondent has moved pursuant to Family Court Act §355.1 for an order vacating the

fact-finding order, and whether or not that branch of the motion is granted, she has moved for

dismissal of the juvenile delinquency petition in furtherance of justice pursuant to Family Court [*2]

Act §315.2. For the reasons which follow, the Court denies both branches of the motion.

At the fact-finding hearing, respondent's trial counsel contended that the Presentment

Agency's evidence-in-chief was legally insufficient to sustain either of the charges contained in

the petition, and that the testimony of the one eyewitness offered by the Presentment Agency

failed to establish her commission of either of the two charges beyond a reasonable doubt. As

indicated above, the Court disagreed with the claims which were raised and well presented by

respondent's trial counsel and the Court entered a finding as to both counts in the petition (see,

Fam. Ct. Act §345.1 [1]).

Respondent retained the services of an additional attorney subsequent to the conclusion of

the fact-finding hearing, and the additional attorney together with respondent's trial counsel have

both, without objection, participated in post-trial proceedings on behalf of respondent. These

post-fact-finding proceedings have included the commencement of the dispositional hearing

mandated by Family Court Act §350.1, as well as the submission and litigation of this motion

which was extensively argued by respondent's second retained attorney.

The first branch of respondent's motion requests that this Court vacate its January 29,

2014 fact-finding order. In particular, respondent contends: (i) that the evidence adduced by the

Presentment Agency was legally insufficient to support either of the charges contained in the

juvenile delinquency petition; and (ii) that the Court's findings that respondent committed the

two crimes charged in the petition is against the weight of the evidence.

its own motion or on motion of the respondent of his [or her] parent or person [*3]

(b) stay execution of, set aside, modify, terminate or vacate any order issued in

the course of a proceeding under this article.

Family Court Act §355.1 is a broadly written but somewhat limited "general provision [that]

recongiz[es] Family Court's power to vacate or modify its own orders, analogous to CPLR 5015

and CPL article 440" (Matter of Rayshawn P., 103 AD3d 31, 42 [2012] see also, Matter of

Delfin A., 123 AD3d 318, 320 [1986] Matter of Chaz H., 298 AD3d 983, 984 [2002] Matter of

Eric S.D., 37 AD3d 1045, 1046 [2007] Matter of Kareem W., 100 AD3d 565 [2012] Matter of

Tilar M. II, 41 Misc 3d 633, 644 [2012]).

While a motion to vacate or to modify a fact-finding order may be made pursuant to

Family Court Act §355.1 (e.g., Mater of Eugene S., 200 AD2d 574, 575 [1994] Matter of Barry

H., 309 AD2d 1147 [2003], lv denied 1 NY3d 503 [2003]), relief under that section requires that

the movant establish that there has been a substantial change of circumstances warranting the

relief sought (Matter of Todd B., 197 AD2d 922 [1993] Eugene S., 200 AD2d at 575; Matter of

Taye E., 213 AD2d 292 [1995] Barry H., 309 AD2d at 1147; Matter of Zachary T.D., 26 AD3d

801, 802 [2006] Matter of Jonathan C., 51 AD3d 559, 560 [2008]).

Here, the first branch of respondent's the motion seeks relief based upon her assertion

that the evidence in the record is not legally sufficient to establish the crimes charged in the

petition. Respondent further contends that the Court's fact-finding order is against the weight of

the evidence. This branch of the motion is akin to one seeking to set aside a verdict prior to

sentencing pursuant to Criminal Procedure Law §330.30, the procedures for which are set forth [*4]

in Criminal Procedure Law §330.40.^[FN1]

"CPL 330.30 specifies the grounds upon which a Trial Judge may set aside or modify

a guilty verdict before sentence" (People v. Carter, 63 NY2d 530, 536 [1984]), and "[t]he power

granted a Trial Judge is . . . far more limited than that of an intermediate appellate court, which is

authorized to determine not only questions of law but issues of fact to reverse or modify a

judgment when the verdict is against the weight of the evidence, and to reverse as a matter of

discretion in the interest of justice" (id. [internal citations omitted] People v. Rohadfox, 114

AD3d 1217, 1218 [2014]).

"A court adjudicating a CPL 330.30 motion may consider only issues of law which would

require a reversal or modification of the judgment as a matter of law by an appellate court

(People v. Hines, 97 NY2d 56, 61 [2001] see also, People v. Alfaro, 66 NY2d 985, 987 [1985])

Thus, "[a] trial court may set aside a verdict on the ground that the evidence is not legally

sufficient to establish the offense charged, but not on the ground that the verdict was against the

weight of the evidence" (People v. Lleshi, 100 AD3d 780 [2012], lv denied 20 NY3d 1012

[2013] see also, Carter, 63 NY2d at 536; People v. Henehan, 111 AD3d 1151, 1152 [2013]).

This rule applies with equal force to a verdict rendered at a bench trial where "a trial court lacks

authority to reweigh the factual evidence and reconsider the verdict" (People v. Maharaj, 89

NY2d 997, 999 [1997] see also, Carter, 63 NY2d at 533; People v. Cunningham, 95 NY2d 909, [*5]

910 [2000] Matter of Phillips v. Wieboldt, 40 AD3d 650, 651 [2007]).

To the extent that respondent argues that the fact-finding order should be set aside on the

ground that the evidence was not legally sufficient to establish the two crimes charged in the

juvenile delinquency petition (Fam. Ct. Act §355.1; Criminal Procedure Law §330.30), this

Court finds this branch of her motion to be meritless.

"The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally

sufficient if, viewing that evidence in the light most favorable to the presentment agency, any

rational trier of fact could have found the [respondent's] commission of all the elements of the

charged crimes beyond a reasonable doubt" (Matter of Chakelton M., 111 AD3d 732, 733

[2013] see also, Matter of David H., 69 NY2d 792, 793 [1987] Matter of Lucas W., 34 AD3d

1349, 1350 [2006] Matter of Aron B., Jr., 46 AD3d 1431 [2007] Matter of Imani Mc., 78 AD3d

705, 706 [2010] Matter of Leporia L.L., 83 AD3d 1539 [2011] Matter of George R., 104 AD3d [*6]

949 [2013] Matter of Justin D., 114 AD3d 941, 942 [2014] Matter of Keir B., 115 AD3d 855,

856 [2014]).

Based upon the evidence adduced at the fact-finding hearing, the Court found that the

Presentment Agency proved beyond a reasonable doubt that Shannel P. committed the two

crimes charged in the petition, that is that she committed the physical act with the requisite

mental state. Nothing in respondent's motion convinces this Court otherwise. The Presentment

Agency's evidence established that Shannel P. deliberately placed the kitten that was the victim of the charged crimes in front of oncoming vehicular traffic on a city street, that the kitten

was run over by a motor vehicle almost instantly, and that the kitten lived for a short time before

dying in the street as a result of massive internal injuries. This was a very young kitten and it was

unlikely that the kitten knew how escape from a person seeking to harm it or experienced in

evading moving vehicles on a city street. Respondent's intent to maim, unjustifiably injure,

torture and kill the animal, which was known as "Little Old Man" and was the pet of another

person, can be inferred from her conduct and from the surrounding circumstances (People v.

Rodriguez, 17 NY3d 486, 489 [2011] People v. Lamont, 113 AD3d 1069, 1071 [2014]).

Robert Reisman, D.V.M., conducted the necropsy upon the kitten and he gave expert

testimony on behalf of the Presentment Agency. Dr. Reisman's testimony conclusively

established that the kitten which was placed in the street by Shannel P. met its demise almost

immediately a result of being run over by a motor vehicle. No other possible cause of death of

this kitten was advanced at trial.

The eyewitness called by the Presentment Agency gave a reasonable description of the

person she claimed committed the crimes, and that description is consistent with respondent's [*7]

physical appearance. The eyewitness was credible and unequivocal in her identification of the

respondent as the perpetrator, and the eyewitness had ample opportunity to view respondent

on at least four separate occasions: (i) a period of several minutes during the events preceding,

during, and immediately following the acts charged, when respondent and the eyewitness

engaged in two verbal exchanges; (ii) the day immediately after the incident when the eyewitness

identified Ms. P. as the perpetrator on the street in close proximity to where the events of the

previous day had occurred; (iii) during her testimony at a Wade hearing that was requested

by the respondent and then ultimately withdrawn prior to a ruling by the Court; and (iv) during

her testimony at the fact-finding hearing which involved both direct and extensive cross-

examination.

Respondent's position at trial was that she is not the person who committed the charged

crimes, and that continues to be her position at this time.^[FN2] The Court considered the evidence

introduced at trial in support of respondent's claim of mistaken identification or that she was not [*8]

present at the scene of the incident. Upon consideration of the motion, the Court is not persuaded

that its determination that Shannel P. is the person who committed the charged crimes was

erroneous.

Lastly, respondent has moved for dismissal of the petition in furtherance of justice.

Family Court Act §315.2 provides that the court may, at any time, dismiss a juvenile delinquency

petition "in furtherance of justice when, even though there may be no basis for dismissal as a

matter of law, such dismissal is required as a matter of judicial discretion by the existence of

some compelling further consideration or circumstances clearly demonstrating that a finding of

delinquency or continued proceedings would constitute or result in injustice" (Fam. Ct. Act

§315.2 [1] [emphasis added] see, Matter of Steven C., 93 AD3d 91, 95 [2012]).

In determining whether to dismiss a petition in furtherance of justice, a court is not vested

with "an untrammeled right to act on purely subjective considerations" (People v. Rickert, 58

NY2d 122, 126 [1983] see also, People v. Rivera, 108 AD3d 452, 452-453 [2013], lv denied 22

NY3d 958 [2013]). Rather, the court is required to consider the factors enumerated in the statute

in making an "individualized decision" (People v. Velez, 111 AD3d 503 [2013]), whether there is

a compelling further consideration or circumstances clearly demonstrating that a finding of

delinquency or continued proceedings would constitute or result in injustice (see, People v.

Colon, 86 NY2d 861, 863 [1995] Matter of Kwame M., 121 AD2d 635, 636 [1986] Matter of

Carlief V., 121 AD2d 640, 641 [1986] Matter of Reginald V.H., 139 AD2d 580, 581 [1988]

Matter of Chris H., 198 AD2d 689 [1993] Steven C., 93 AD3d at 95-96).

Having had the benefit of conducting a contested fact-finding hearing in this case, this

Court is not persuaded that there is some compelling consideration or circumstances that [*9]

demonstrates that an adjudication of juvenile delinquency or continued proceedings would result

in injustice to respondent. As indicated by this Court's fact-finding decision at the conclusion of

trial as well as by this decision, the Court credited the evidence adduced by the Presentment

Agency and discredited the rebuttal evidence offered by the respondent.

There was no misconduct of any kind on the part of law enforcement in the investigation

and prosecution of this case (cf., Steven C., 93 AD3d at 96 [serious misconduct found with

respect to police officer conduct]). The felony which respondent was found to have committed, and the non-inclusory concurrent misdemeanor count, address a serious societal concern (People

v. Knowles, 184 Misc 2d 474, 476 [2000]). "Agriculture and Markets Law §353-a (1) ,

Aggravated cruelty to animals, represents the Legislature's recognition that man's inhumanity to

man often begins with inhumanity to those creatures that have formed particularly close

relationships with mankind" (People v. Garcia, 29 AD3d 255, 257 [2006] [citation and

punctuation omitted], lv denied 7 NY3d 789 [2006] see also, People v. Boateng, 67 AD3d 505

[2009], lv denied 14 NY3d 769 [2010] People v. Lohnes, 112 AD3d 1148 [2013]).

In this case, the respondent's conduct was deliberate, unprovoked and especially cruel in

that she threw a helpless kitten to its death under the wheels of a motor vehicle (see, People v.

Augustine, 89 AD3d 1238, 1242 [2011], aff'd 21 NY3d 949, 951 [2013] [defendant killed dog in

depraved or sadistic manner] Knowles, 184 Misc 2d at 479-480 [throwing eight month old dog

against brick wall is depraved and sadistic conduct]). Given the seriousness of the criminal

conduct involved here, the harm caused by respondent's conduct- the death of the kitten and the

loss of the kitten by its owner- the history and character of the respondent as indicated by the

evidence in the record, and her adamant denial of her commission of the acts which the Court has [*10]

found that she has committed, this Court is not convinced at this time that dismissal of the

petition in furtherance of justice is appropriate. It is unclear that such an outcome, which does not

involve an adjudication of juvenile delinquency, would serve the needs and best interests of the

respondent and the need to protect the community (see, Matter of Khaled S., 283 AD3d 197

[2001]).

Finally, the Court rejects respondent's contention that the evidence adduced at trial is

insufficient to establish the charged crimes and that the petition should be dismissed in

furtherance of justice because she has "passed" a polygraph examination administered her

retained polygraph expert.

In order to be admissible, scientific evidence must be shown to be reliable, that is based

upon generally accepted methods or principles (People v. Wesley, 83 NY2d 417, 422 [1994]

Parker v. Mobil Oil Corporation, 7 NY3d 434, 446 [2006]). Whether proffered scientific

evidence meets the reliability standard of Frye v. United States (293 F 1013 [DC Cir 1923]), is

a separate inquiry from whether a proper foundation has been established for the admission of

particular evidence (Parker, 7 NY3d at 446-447; People v. Oddone, 22 NY3d 369, 376 [2013]

Cornell v. 360 West 51st Street Realty, LLC, ___ NY3d ___, 2014 NY Slip Op 02096; see also,

People v. Littlejohn, 111 AD3d 67, 73 [2013], lv denied 22 NY3d 1140 [2014]).

It is sufficient here to note that the results of polygraph examinations have never been

deemed sufficiently reliable to meet the Frye test in New York (People v. Leone, 25 NY2d 511,

514-515 [1969] People v. Tarsia, 50 NY2d 1, 7 [1980] People v. Shedrick, 66 NY2d 1015,

1018 [1985] People v. Angelo, 88 NY2d 217, 223 [1996] People v. Jackson, 70 AD3d 1385,

1386 [2010], lv denied 14 NY3d 714 [2010] Matter of Aryeh-Levi K., 134 AD2d 428, 429 [*11]

[1987] Matter of Erick R., 166 AD2d 161, 162 [1990] Matter of Loren B. v. Heather A., 13

AD3d 998, 999 [2004], lvs denied 4 NY3d 710 [2005] Matter of Daniel BB., 26 AD3d 687, 688

[2006]).^[FN3]

"A polygrapher's opinions regarding the [accused's] veracity are not admissible

evidence" (People v. Scott, 88 NY2d 888, 891 [1996]). Moreover, even assuming arguendo

that the polygrapher retained by respondent is qualified to give testimony concerning how a

polygraph examination is administered, that in no way establishes that this polygrapher is

qualified to express any opinion as to the scientific accuracy of the results of a polygraph

examination (see, United States v. R.D.A., Jr., 156 F3d 1245 [10th Cir 1998] In re Jordan R., 205

CalApp4th 111, 122-123, 140 CalRptr 222, 233-234 [Ct App 2012]).

Accordingly, this Court gives no weight to the report by respondent's retained

polygrapher stating that respondent "was being truthful" when she answered "no" to the question

"[o]n September 11, 2013, did you throw a kitten underneath a moving car?". The polygrapher's

opinion does not compel dismissal of the petition in furtherance of justice, when considered in

conjunction with the other statutory factors. Similarly, the polygrapher's report does not require

that this Court vacate its previous fact-finding order (see, People v. Stevens, 95 AD3d 1451, 1454

[2012], lv denied 19 NY3d 1029 [2012] [defendant's claim of actual innocence based upon

results of private polygraph examination not basis to dismiss after verdict] In re Aontae D., 25 [*12]

CalApp4th 167, 172, 30 CalRptr2d 176, 178-179 [Ct App 1994] [results of asserted favorable

polygraph examination does not compel new trial in delinquency proceeding]).

ORDERED, that respondent's motion is denied for the reasons stated herein, and the

Court will conclude the previously commenced dispositional hearing.