Opinion
January 4, 1979
Order of disposition, Family Court, Bronx County, entered October 31, 1977, which adjudicated the appellant a juvenile delinquent and placed him on probation for one year, unanimously modified, on the law, without costs and without disbursements, to reverse the fact-finding determination with respect to the attempted robbery, and dismiss that charge in the petition, and otherwise affirmed. The appellant was one of three juveniles who, at a subway station in The Bronx, made threatening remarks to the transit employee in the change booth, and their acts were observed by two transit patrolmen. One of the three, not the appellant, thrust a knife through the open window of the booth and stated "I should kill you" and "I should rob", while the appellant looked on. It was found that the appellant's conduct would, if done by an adult, constitute the crimes of attempted robbery and menacing. We do not believe that it can be found beyond a reasonable doubt that the appellant was guilty of attempted robbery under the definitions thereof (Penal Law, §§ 110:00, 160.15). However, we affirm with respect to menacing (Penal Law, § 120.15, 20.00 Penal). There was no doubt that the appellant's companion was menacing under the appropriate definitions, and it could be found beyond a reasonable doubt that the appellant was intentionally aiding "such person to engage in such conduct." We do not disturb the disposition.
Concur — Kupferman, J.P., Birns, Lane, Sandler and Sullivan, JJ.