Opinion
June 28, 1993
Appeal from the Family Court, Kings County (Esquirol, J.).
Ordered that the order of disposition is modified, on the law, by vacating the provision finding that the appellant had committed acts which, if committed by an adult, would have constituted the crime of robbery in the first degree, and dismissing that count of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
The presentment agency concedes, and we agree, that there was insufficient evidence to support the finding of the Family Court that the appellant had committed an act, which, if committed by an adult, would constitute robbery in the first degree based upon the appellant using or threatening the immediate use of a dangerous instrument, i.e., a gun (see, Penal Law § 160.15). Since there was no evidence at the hearing that the gun purportedly used in the robbery was loaded, fired, or capable of being fired, or that the appellant did anything with the gun other than press it against the victim's back, the count of the petition charging robbery in the first degree should have been dismissed (see, People v. Seabrooks, 120 A.D.2d 691). Mangano, P.J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.