| Matter of Ashley C. |
| 2009 NY Slip Op 01476 [59 AD3d 715] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Ashley C., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg 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, Kings County (Turbow, J.), dated April 22,2008, which, upon a fact-finding order of the same court dated January 30, 2008, made after ahearing, finding that the appellant had committed an act which, if committed by an adult, wouldhave constituted the crime of menacing in the third degree, adjudged her to be a juveniledelinquent and placed her with the Office of Children and Family Services for a period of 12months. The appeal brings up for review the fact-finding order.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements,the fact-finding order is vacated, the petition is dismissed, and the matter is remitted to theFamily Court, Kings County, for further proceedings in accordance with Family Court Act§ 375.1.
As correctly conceded in the presentment agency's brief, the complainant in this case did nottestify to the effect that she feared death, imminent serious physical injury, or physical injury.Thus, even when reviewing the evidence in the light most favorable to the presentment agency(see Matter of David H., 69 NY2d 792, 793 [1987]), we conclude that the evidence waslegally insufficient to support the finding that the appellant committed an act which, ifcommitted by an adult, would have constituted the crime of menacing in the third degree(see Penal Law § 120.15;Matter of Davonte B., 44 AD3d 763, 764-765 [2007]; Matter of Willie W., 32 AD3d479, 480 [2006]; Matter of Anisha McG., 27 [*2]AD3d 749, 750-751 [2006]; Matter of Rosalis D., 305AD2d 407, 408 [2003]; Matter of Wanji W., 305 AD2d 690, 691-692 [2003]; Matterof Michael H., 294 AD2d 364, 365 [2002]; Matter of Steven W., 294 AD2d 370,371 [2002]; Matter of Akida L., 170 AD2d 680, 681 [1991]; see also People vPeterkin, 245 AD2d 1050, 1051 [1997]; cf. Matter of John F., 12 AD3d 509 [2004]). The order ofdisposition therefore should be reversed, the fact-finding order vacated, and the petitiondismissed. Rivera, J.P., Covello, Leventhal and Chambers, JJ., concur.