Opinion
CAF 03-02618.
Decided April 30, 2004.
Appeal from an amended order of the Family Court, Monroe County (Alex R. Renzi, J.), entered September 26, 2003. The amended order adjudged that respondent is a juvenile delinquent and placed respondent in the custody of the New York State Office of Children and Family Services for a period of 12 months.
ARDETH L. HOUDE, ROCHESTER, FOR RESPONDENT-APPELLANT.
DANIEL M. DE LAUS, COUNTY ATTORNEY, ROCHESTER (SCOTT WILLIAM WESTERVELT OF COUNSEL), PETITIONER-RESPONDENT PRO SE.
Before: PRESENT: GREEN, J.P., PINE, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Family Court's finding that respondent committed an act that, if committed by an adult, would constitute attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [a]) is based on legally sufficient evidence. The evidence establishes that respondent struck a school administrator on the head with a telephone receiver. "Respondent's intent to cause physical injury can be inferred from the conduct and surrounding circumstances" ( Matter of Margaret A.W., 1 A.D.3d 881; see Matter of Anthony S., 305 A.D.2d 689, 690). The court further found that respondent committed an act that, if committed by an adult, would constitute criminal possession of a weapon in the fourth degree (§ 265.01 [2]). Respondent's contention regarding the legal sufficiency of the evidence with respect to that finding is not preserved for our review ( see Matter of Yarras F., 5 A.D.3d 481 [Mar. 8, 2004]; Anthony S., 305 A.D.2d at 689-690; see generally People v. Gray, 86 N.Y.2d 10, 19). In any event, viewing the evidence in the light most favorable to the presentment agency, we conclude that the evidence is legally sufficient to establish that the telephone receiver was a dangerous instrument ( see People v. Carter, 53 N.Y.2d 113, 116-117; People v. Becker, 298 A.D.2d 986, lv denied 99 N.Y.2d 555; People v. McKoy, 258 A.D.2d 950, lv denied 93 N.Y.2d 876; Matter of Jason J., 187 A.D.2d 652, 653, lv denied 81 N.Y.2d 706), and that respondent intended to use it unlawfully ( see Margaret A.W., 1 A.D.3d 881; Anthony S., 305 A.D.2d at 690). We further conclude that the court's findings are not against the weight of the evidence.