| Matter of Joseph H. |
| 2008 NY Slip Op 07665 [55 AD3d 608] |
| October 7, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joseph H., a Person Alleged to be a Juvenile Delinquent,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and AlanBeckoff of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from anorder of disposition of the Family Court, Kings County (Freeman, J.), dated August 8, 2007, which,upon a fact-finding order of the same court (Spodek, J.), dated February 6, 2007, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the second degree (four counts) and criminal possession of stolenproperty in the fifth degree (two counts), adjudged him to be a juvenile delinquent and placed him onprobation for a period of 12 months. The appeal from the order of disposition brings up for review thefact-finding order.
Ordered that the appeal from so much of the order of disposition as placed the appellant onprobation for a period of 12 months is dismissed as academic, without costs or disbursements, as theperiod of probation has expired (see Matterof Daniel R., 51 AD3d 933 [2008]); and it is further,
Ordered that the order of disposition is modified, on the law, by deleting the provision thereofadjudicating the appellant a juvenile delinquent based upon the finding that, with respect to theMongoose bicycle removed from the Georgia Avenue premises in Kings County, New York, onFebruary 21, 2006, he committed acts which, if committed by an adult, would have constituted thecrime of robbery in the second degree (two counts), and substituting therefor a provision dismissingthose counts of the criminal complaint; as so modified, the order of disposition is affirmed insofar asreviewed, without costs or disbursements, and the fact-finding order is modified accordingly.
Viewing the evidence in the light most favorable to the presentment agency (see Matter ofDavid H., 69 NY2d 792, 793 [1987]; Matter of Kenyetta F., 49 AD3d 540, 541 [2008]), we find that it [*2]was legally sufficient to establish that the appellant committed acts which,if committed by an adult, would have constituted the crimes of robbery in the second degree (twocounts) based upon a theory of accomplice liability regarding the theft of a bicycle that took place atEvergreen and Harmon Avenues in Kings County, New York, on February 21, 2006, and criminalpossession of stolen property in the fifth degree (two counts) based upon a theory of accompliceliability regarding the thefts of two bicycles (see Penal Law §§ 20.00, 160.10 [1],[2] [a]; §§ 160.00, 165.40; Matter of Kenyetta F., 49 AD3d 540, 541 [2008]; Matter of Jonathan V., 43 AD3d 470,471 [2007]; Matter of Louis C., 6 AD3d430, 431 [2004]). Furthermore, resolution of issues of credibility, as well as the weight to beaccorded to the evidence, are primarily questions to be determined by the trier of fact, which saw andheard the witnesses (see Matter of BrionaT.G., 47 AD3d 811, 812 [2008]; Matter of Thomas S., 26 AD3d 389, 390 [2006]). Upon the exercise ofour factual review power, we are satisfied that, with respect to the foregoing offenses, the findings offact were not against the weight of the evidence (cf. CPL 470.15 [5]).
However, viewing the evidence in the light most favorable to the presentment agency, we agreewith the appellant that it was legally insufficient to establish beyond a reasonable doubt that, withrespect to the Mongoose bicycle removed from the Georgia Avenue premises in Kings County, NewYork, on February 21, 2006, the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the second degree (two counts) under Penal Law § 160.10(1) and (2) (a), as the criminal complaint charged. In particular, both of those provisions require a"forcible stealing" within the meaning of Penal Law § 160.00. As relevant here, that sectionprovides that a forcible stealing occurs when a person "uses or threatens the immediate use of physicalforce upon another person" for the purpose of "[p]reventing or overcoming resistance to the taking ofthe [subject] property or to the retention thereof immediately after the taking" (Penal Law §160.00 [1]). Here, the evidence demonstrated that no force was used when the Mongoose bicycle wasremoved from the Georgia Avenue premises. Indeed, the complainant was not physically present at thescene of the removal, and did not become aware of it until about two to three minutes after the fact, atwhich time the perpetrators and the bicycle were gone. Furthermore, the evidence was insufficient todemonstrate that any force was used to retain the bicycle immediately after it was taken (see People v Robertson, 53 AD3d 791[2008]; cf. People v Rumrill, 40 AD3d1273, 1274-1275 [2007]; People v Johnstone, 131 AD2d 782, 782-783 [1987]), andthere was insufficient evidence to demonstrate a forcible stealing under the alternate definition of thatterm (see Penal Law § 160.00 [2]).
The appellant's remaining contentions are without merit. Rivera, J.P., Miller, Angiolillo andChambers, JJ., concur.