In re Brandon R. , 956 N.Y.S.2d 886 ( 2013 )

Order of disposition, Family Court, Bronx County (Allen G. Alpert, J), entered on or about December 2, 2011, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of sexual abuse in the first and third degrees, and placed him on probation for a period of 18 months, unanimously modified, on the law, to the extent of vacating the finding as to sexual abuse in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding was supported by sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s credibility determinations, including its finding that there was nothing on a surveillance videotape that would render the victim’s testimony incredible. To the extent appellant is arguing that the court erred in admitting certain hearsay testimony under the excited utterance exception, that claim is unavailing. In its decision, the court expressly disclaimed any reliance on the excited utterance. In any event, it was properly admitted.

As the presentment agency concedes, the third-degree sexual abuse count should have been dismissed as a lesser included offense. Concur—Friedman, J.P., Sweeny, Acosta, Abdus-Salaam and Manzanet-Daniels, JJ.