Opinion
101
February 4, 2003.
Order of disposition, Family Court, New York County (Helen Sturm, J.), entered on or about February 21, 2002, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed acts which, if committed by an adult, would constitute the crimes of attempted robbery in the first degree, attempted robbery in the second degree (two counts), attempted robbery in the third degree, attempted grand larceny in the fourth degree, criminal possession of a weapon in the fourth degree (two counts), and menacing in the second and third degrees, and placed him with the State Office of Children and Family Services for a period of 18 months, unanimously modified, on the law and the facts, to the extent of vacating the findings as to criminal possession of a weapon in the fourth degree, attempted robbery in the second degree under Penal Law § 110.00/160.10 (2) (b), attempted robbery in the third degree and menacing in the third degree, and dismissing those counts of the petition, and otherwise affirmed, without costs.
Jonathan M. Kratter, for appellant.
Dona B. Morris, for Presentment Agency.
Before: Nardelli, J.P., Andrias, Buckley, Rosenberger, Friedman, JJ.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490). There is no basis for disturbing the court's determinations concerning identification and credibility. The evidence established that the victim had ample opportunity to observe appellant.
As the presentment agency concedes, the two counts of criminal possession of a weapon in the fourth degree required proof that appellant's weapon was operable, and since no such evidence was introduced, those counts should be dismissed. As further conceded by the presentment agency, the counts of attempted robbery in the second degree under Penal Law § 110.00/160.15(4), attempted robbery in the third degree and menacing in the third degree should be dismissed as lesser included offenses of attempted robbery in the first degree and menacing in the second degree.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.