| Matter of Tanasia Elanie E. |
| 2008 NY Slip Op 02148 [49 AD3d 642] |
| March 11, 2008 |
| Appellate Division, Second Department |
| In the Matter of Tanasia Elanie E., a Person Alleged to be aJuvenile Delinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and TahirihM. Sadrieh 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 (Hunt, J.), dated June 19, 2007,which, upon a fact-finding order of the same court dated May 8, 2007, made after a hearing,finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the second degree (two counts), grand larceny in the fourthdegree (two counts), criminal possession of stolen property in the fifth degree (two counts), andmenacing in the third degree (two counts), adjudged her to be a juvenile delinquent and placedher on probation for a period of 12 months. The appeal brings up for review the fact-findingorder dated May 8, 2007.
Ordered that the order of disposition is modified, on the law, by vacating the provisionthereof 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 menacingin the third degree, 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 thefact-finding order is modified accordingly.
As the presentment agency correctly concedes, the petition was facially insufficient as to themenacing in the third degree counts because it failed to set forth sworn nonhearsay allegations offact sufficient to establish, if true, the physical menace element of that crime (see FamilyCt Act § 311.2; Matter of MichaelM., 3 NY3d 441 [2004]; Matter of Neftali D., 85 NY2d 631, 635 [1995]; [*2]Matterof Jermaine G., 38 AD3d 105 [2007]; Matter of Akheem B., 308 AD2d 402[2003]; contra Matter of Monay W.,33 AD3d 809 [2006]; Matter ofWillie W., 32 AD3d 479 [2006]). Thus, those counts of the petition must be dismissed.
Viewing the evidence in the light most favorable to the presentment agency (Matter ofDavid H., 69 NY2d 792 [1987]; Matter of Charles S., 41 AD3d 484 [2007]), we find that it waslegally sufficient to support the findings that the appellant committed acts which, if committed byan adult, would have constituted the crimes of robbery in the second degree (see PenalLaw § 160.10 [1]; Matter ofLaquan H., 29 AD3d 582, 582-583 [2006]), grand larceny in the fourth degree(see Penal Law § 155.30 [5]; People v Haynes, 91 NY2d 966 [1998]), andcriminal possession of stolen property in the fifth degree (see Penal Law § 165.40;Matter of Laquan H., 29 AD3d582 [2006]). Resolution of issues of credibility is primarily a matter to be determined by thefinder of fact, which saw and heard the witnesses, and its determination should be accorded greatdeference on appeal (see Matter ofCharles S., 41 AD3d 484 [2007]; Matter of Gabriel A., 12 AD3d 666, 667 [2004]). Upon the exerciseof our factual review power (cf. CPL 470.15 [5]), we are satisfied that the findings of factwith regard to the foregoing acts were not against the weight of the evidence. Lifson, J.P., Ritter,Florio and Carni, JJ., concur.