Opinion
May 5, 1997
Appeal from the Family Court, Queens County (Lubow, J.).
Ordered that the dispositional order is modified, on the law, by adding thereto a provision vacating the provision of the fact-finding order finding that the appellant had committed an act which, if committed by an adult, would constitute the crime of assault in the third degree, and dismissing that charge 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 determination of a Family Court Judge sitting as trier of fact is to be accorded the same weight as that given to a jury verdict ( Matter of Michael D., 109 A.D.2d 633, 634, citing People v. Carter, 63 N.Y.2d 530). Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the trier of fact, who saw and heard the witnesses ( see, Matter of Monique T., 194 A.D.2d 428, 429; cf., People v. Gaimari, 176 N.Y. 84, 94). Its determination should not be disturbed unless clearly unsupported by the record ( cf., People v. Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the finding of fact was not against the weight of the evidence ( cf., CPL 470.15).
However, as the presentment agency properly concedes, the charge of the petition charging assault in the third degree should be dismissed as a lesser-included offense of assault in the second degree ( see, Penal Law § 120.00; § 120.05[2]; People v. Glover, 57 N.Y.2d 61).
Mangano, P.J., Pizzuto, Krausman and Luciano, JJ., concur.