| Matter of Kenyetta F. |
| 2008 NY Slip Op 01951 [49 AD3d 540] |
| March 4, 2008 |
| Appellate Division, Second Department |
| In the Matter of Kenyetta F., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and JulieSteiner of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal isfrom an order of disposition of the Family Court, Queens County (Modica, J.), dated April 24,2007, which, upon a fact-finding order of the same court, dated January 19, 2007, made after ahearing, finding that the appellant had committed acts which, if committed by an adult, wouldhave constituted the crimes of robbery in the second degree, assault in the second degree, assaultin the third degree, attempted robbery in the second degree, conspiracy in the fourth degree,conspiracy in the fifth degree, conspiracy in the sixth degree, and criminal facilitation in thefourth degree, adjudged her to be a juvenile delinquent and placed her with the Office ofChildren and Family Services for a period of 18 months. The appeal brings up for review thefact-finding order dated January 19, 2007.
Ordered that the order of disposition is modified, on the law, by deleting the provisionsthereof adjudicating the appellant a juvenile delinquent based upon the finding that shecommitted acts which, if committed by an adult, would have constituted the crimes of conspiracyin the fifth degree and conspiracy in the sixth degree, and substituting therefor a provisiondismissing 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 approached the complainant on a city street and detained him with [*2]questions, thereby enabling other individuals to beat him and stealhis property. During this incident, the appellant did nothing to intervene or summon help. Shethen fled with the attackers.
Viewing the evidence in the light most favorable to the presentment agency (see Matterof David H., 69 NY2d 792, 793 [1987]; Matter of Jonathan D., 33 AD3d 996 [2006]), we find that it waslegally sufficient to establish that the appellant committed acts which, if committed by an adult,would have constituted robbery in the second degree and assault in the second degree on a theoryof accomplice liability (see Penal Law § 160.10 [1]; § 120.05 [6]; §20.00). The evidence of her conduct before, during, and after the acts established beyond areasonable doubt that she acted in concert to commit the charged acts (see Matter of Jonathan V., 43 AD3d470 [2007]; Matter of Justice G.,22 AD3d 368 [2005]; Matter of Joseph J., 205 AD2d 777 [1994]; Matter ofAida S., 189 AD2d 818, 819 [1993]). Moreover, upon the exercise of our factual reviewpower, we are satisfied that the findings of fact were not against the weight of the evidence(cf. CPL 470.15 [5]).
The Family Court properly found that giving the appellant credit for the time she was indetention would not serve her best interests or adequately protect the community (seeFamily Court Act § 353.3 [5]; Matter of Nikson D., 15 AD3d 656 [2005]; Matter of Mack M.,175 AD2d 869 [1991]).
However, as the presentment agency currently concedes, the counts of conspiracy in the fifthdegree and conspiracy in the sixth degree should have been dismissed as lesser-included offensesof conspiracy in the fourth degree (seeMatter of Jaleel H., 36 AD3d 808 [2007]).
The appellant's remaining contentions are without merit. Spolzino, J.P., Santucci, Angiolilloand Carni, JJ., concur.