Opinion
2012-10-25
In re DAVID H., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), for appellant. Michael A. Cardozo, Corporation counsel, New York (Marta Ross of counsel), for presentment agency.
Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio of counsel), for appellant. Michael A. Cardozo, Corporation counsel, New York (Marta Ross of counsel), for presentment agency.
Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about April 5, 2011, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of menacing in the second degree, and placed him on enhanced supervision probation for a period of 18 months, unanimously affirmed, without costs.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the court's determinations concerning credibility and identification. The victim made a prompt and reliable identification of appellant. The evidence established that appellant threatened the victim by displaying what appeared to be a pistol ( seePenal Law § 120.14[1] ). The inability of the police to recover this object can be readily explained by the fact that appellant had an opportunity to separate himself from it.
The court's dismissal of the weapon possession count does not undermine the sufficiency and weight of the evidence supporting the finding as to menacing. On the contrary, the mixed finding was logical and consistent with the evidence. The weapon charge required proof that the apparent firearm displayed by appellant was actually a weapon, as set forth in Penal Law § 265.01(2).