Opinion
309
February 26, 2002.
Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about June 11, 2001, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of crediting appellant for 123 days served in pre-disposition detention, vacating the finding as to assault in the third degree, and dismissing that count of the petition, and otherwise affirmed, without costs.
Patricia S. Colella for appellant.
Kristin M. Helmers for Presentment Agency.
Before: Nardelli, J.P., Saxe, Sullivan, Wallach, Friedman, JJ.
As the presentment agency commendably concedes, there was no finding by the court that crediting the appellant with time spent in detention prior to the commencement of placement would not serve the needs and best interests of the appellant or the need for protection of the community. Therefore, appellant is entitled to credit for that time (Family Ct Act § 353.3(5); Matter of Wayne S., 193 A.D.2d 371, 372).
Also, as conceded, attempted assault in the third degree is a lesser included offense of attempted assault in the second degree, and that count of the petition is dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.