Opinion
2011-11-1
In the Matter of GILBERTO M. (Anonymous) III, appellant.
Steven Banks, New York, N.Y. (Tamara A. Steckler and Judith Stern of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Norman Corenthal of counsel; Meredith E. Dempsey on the brief), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Gilberto M. III appeals from an order of disposition of the Family Court, Kings County (Freeman, J.), dated July 2, 2010, which, upon a fact-finding order of the same court dated May 24, 2010, made after a hearing, finding that he had committed acts which, if committed by an adult, would have constituted the crimes of attempted gang assault in the first degree, assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, adjudged him to be a juvenile delinquent,
and conditionally discharged him for a period of 12 months. The appeal from the order of disposition brings up for review the fact-finding order.
ORDERED that the appeal from so much of the order of disposition as conditionally discharged the appellant for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of conditional discharge has expired; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
The appellant contends that the evidence was legally insufficient to support the fact-finding determination as to attempted gang assault in the first degree and assault in the second degree. Insofar as this contention relates to the issues of justification and physical injury, it is unpreserved for appellate review, as he failed to raise those specific claims before the Family Court ( see Matter of Rodolfo M., 79 A.D.3d 752, 911 N.Y.S.2d 913; Matter of Melissa N., 62 A.D.3d 884, 878 N.Y.S.2d 783; Matter of Anthony R., 43 A.D.3d 939, 841 N.Y.S.2d 642; cf. CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the presentment agency ( see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621; Matter of Christopher C., 54 A.D.3d 757, 863 N.Y.S.2d 759; Matter of Christian M., 37 A.D.3d 834, 831 N.Y.S.2d 247), we find that it was legally sufficient to establish, beyond a reasonable doubt ( see Family Ct. Act § 342.2[2] ), that the appellant committed acts which, if committed by an adult, would have constituted the crimes of attempted gang assault in the first degree and assault in the second degree (two counts) ( cf. Penal Law §§ 110.00, 120.07, 120.05[2] ). Moreover, upon our independent review of the record ( cf. CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we are satisfied that the fact-finding determination as to those acts was not against the weight of the evidence ( see Matter of Devon A., 78 A.D.3d 1171, 1173, 912 N.Y.S.2d 276; Matter of Hasan C., 59 A.D.3d 617, 873 N.Y.S.2d 709).
MASTRO, J.P., ENG, BELEN and HALL, JJ., concur.