Opinion
May 27, 1997
Appeal from the Family Court, Queens County (Lubow, J.).
Ordered that the order of disposition is modified, on the law, by deleting the provisions thereof which adjudicated the appellant a juvenile delinquent based upon the finding that she committed acts which, if committed by an adult, would have constituted the crimes of robbery in the third degree and petit larceny, and substituting therefor a provision dismissing those counts 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 appellant's contention that the evidence adduced at the fact-finding hearing was legally insufficient to establish her guilt beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the presentment agency and according it the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; Matter of William A., 219 A.D.2d 494, 495), we find that it was legally sufficient to establish the appellant's guilt beyond a reasonable doubt (see, Matter of Anthony C., 155 A.D.2d 537, 538). Moreover, upon the exercise of our factual review power, we are satisfied that the Family Court's fact-finding decision was not against the weight of the evidence (see, CPL 470.15).
Nonetheless, and as the presentment agency correctly concedes on appeal, both robbery in the third degree and petit larceny are lesser included offenses of robbery in the second degree (see, Matter of Charmaine J., 236 A.D.2d 474; Matter of Jamal M., 187 A.D.2d 654, 655; People v. Ceballos, 98 A.D.2d 475, 478). Accordingly, upon the finding of guilt as to the greater count (robbery in the second degree), the lesser counts (robbery in the third degree and petit larceny) should have been dismissed (see, CPL 300.40[b]; Matter of Charmaine J., supra; Matter of Jamal M., supra).
O'Brien, J.P., Goldstein, McGinity and Luciano, JJ., concur.