| Matter of Davonte B. |
| 2007 NY Slip Op 07698 [44 AD3d 763] |
| October 9, 2007 |
| Appellate Division, Second Department |
| In the Matter of Davonte B., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and SusanB. Eisner of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeals arefrom (1) a fact-finding order of the Family Court, Kings County (Weinstein, J.), dated August 24,2006, which, after a hearing, found that the appellant committed acts which, if committed by anadult, would have constituted the crimes of robbery in the second degree, criminal possession ofstolen property in the fifth degree, and menacing in the third degree, and (2) an order ofdisposition of the same court dated October 19, 2006, which, upon the fact-finding order,adjudged him to be a juvenile delinquent, and placed him on probation under the supervision ofthe Probation Department of Kings County for a period of 12 months.
Ordered that the appeal from the fact-finding order is dismissed, without costs ordisbursements, as it was superseded by the order of disposition; and it is further,
Ordered that the order of disposition is modified, on the law, by deleting the provisionthereof adjudicating the appellant a juvenile delinquent based upon the finding that he committedan act which, if committed by an adult, would have constituted the crime of menacing in the thirddegree and substituting therefor a provision dismissing that count of the petition; as so modified,the order of disposition is affirmed, without costs or disbursements, and the fact-finding order ismodified accordingly.
The appellant's contention that his right to a speedy fact-finding hearing was violated isunpreserved for appellate review as he failed to move to dismiss the petition on that basis in theFamily Court (see Family Ct Act §§ 332.1 [8]; § 332.2 [1]; Matter ofKovan Clearance D., 288 AD2d [*2]219, 220 [2001];Matter of Steve B., 233 AD2d 440 [1996]; Matter of Ralph D., 163 AD2d 752,753 [1990]). In any event, since the Family Court Act clearly evinces a preference for a singlefact-finding hearing in cases involving multiple respondents and the appellant failed todemonstrate good cause to sever his case from that of his corespondent (see Family CtAct § 311.3 [1]), it was a provident exercise of the Family Court's discretion to adjourn thefact-finding hearing for 30 days to secure the appearance of the corespondent (see Matter ofAntoine L., 248 AD2d 472, 473 [1998]).
Viewing the evidence in the light most favorable to the presentment agency (see Matterof David H., 69 NY2d 792, 793 [1987]; Matter of Charles S., 41 AD3d 484, 485 [2007]), we find that itwas legally sufficient to support the findings made in the fact-finding order that the appellantcommitted acts which, if committed by an adult, would have constituted the crimes of robbery inthe second degree (see Penal Law § 160.10 [1]; Matter of Laquan H., 29 AD3d 582, 582-583 [2006]), and criminalpossession of stolen property in the fifth degree (see Penal Law § 165.40;Matter of Laquan H., 29 AD3d at 582-583). Resolution of issues of credibility isprimarily a matter to be determined by the finder of fact, which saw and heard the witnesses, andits determination should be accorded great deference on appeal (see Matter of Charles S.,41 AD3d at 485-486; Matter ofGabriel A., 12 AD3d 666, 667 [2004]). Upon the exercise of our factual review power(cf. CPL 470.15 [5]), we are satisfied that the findings of fact with regard to the foregoingacts are not against the weight of the evidence.
However, we agree with the appellant that the evidence was legally insufficient to establishthat he committed an act which, if committed by an adult, would have constituted the crime ofmenacing in the third degree (see Penal Law § 120.15). A person is guilty of thatcrime when "by physical menace, he or she intentionally places or attempts to place anotherperson in fear of death, imminent serious physical injury or physical injury" (id.). Thecomplainant specifically denied telling the presentment agency that the appellant's act placed himin fear of death, and he did not testify to the effect that he feared "imminent serious physicalinjury" or "physical injury." Indeed, in its brief on appeal, the presentment agency highlights onlythe complainant's testimony that he felt "violated" by the incident. That does not suffice (seeMatter of Michael H., 294 AD2d 364, 365 [2002]). Accordingly, we modify the order ofdisposition to the extent indicated. Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.