| Matter of Stanley F. |
| 2010 NY Slip Op 06794 [76 AD3d 1069] |
| September 28, 2010 |
| Appellate Division, Second Department |
| In the Matter of Stanley F., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and FayNg 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 June 11,2009, which, upon a fact-finding order of the same court dated April 21, 2009, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crime of reckless endangerment in the second degree, adjudged him to be ajuvenile delinquent, and placed him with the New York State Office of Children and FamilyServices for a period of 12 months. The appeal brings up for review the fact-finding order datedApril 21, 2009.
Ordered that the appeal from so much of the order of disposition as placed the appellant withthe New York State Office of Children and Family Services for a period of 12 months isdismissed as academic, without costs or disbursements; and it is further,
Ordered that the order of disposition is reversed insofar as reviewed, on the law, withoutcosts or disbursements, and the fact-finding order dated April 12, 2009, is vacated.
The appeal from so much of the order of disposition as placed the appellant with the NewYork State Office of Children and Family Services for a period of 12 months has been renderedacademic, as the period of placement has expired (see Matter of Vanna W., 45 AD3d 855 [2007]; Matter of Sydney N., 42 AD3d539 [2007]; Matter of ChristianM., 37 AD3d 834 [2007]). However, because there may be collateral consequencesresulting from the adjudication of delinquency, the appeal from so much of the order ofdisposition as adjudicated the appellant a juvenile delinquent and which brings up for review thefact-finding order, has not been rendered academic (see Family Ct Act § 783;Matter of Dorothy D., 49 NY2d 212 [1980]).
Viewing the evidence in the light most favorable to the presentment agency (see Matterof David H., 69 NY2d 792, 793 [1987]; Matter of Summer D., 67 AD3d 1008 [2009]), we find that it wasnot legally sufficient to support a finding that the appellant, based on a theory of accessorialliability, was guilty of committing acts which, if committed by an adult, would constitute thecrime of reckless endangerment in the second degree. With respect to this charge, the evidenceestablished that on June 11, 2008, the police stopped the appellant and two other youths on thestreet, and thereafter [*2]discovered that one of the other youthswas in possession of a bag which contained a plastic Sprite bottle partially filled with gasoline,glass bottles, a lighter, a surgical mask, a staple cutter, a roll of paper towels, gloves, Band-Aids,a flashlight, and a fire extinguisher.
Penal Law § 120.20 provides that a person is guilty of reckless endangerment in thesecond degree when he or she recklessly engages in conduct which creates a substantial risk ofserious physical injury to another person. Pursuant to Penal Law § 15.05 (3), "[a] personacts recklessly with respect to a result or to a circumstance described by a statute defining anoffense when he is aware of and consciously disregards a substantial and unjustifiable risk thatsuch result will occur or that such circumstance exists. The risk must be of such nature anddegree that disregard thereof constitutes a gross deviation from the standard of conduct that areasonable person would observe in the situation." The determination whether recklessendangerment has been proven by legally sufficient evidence requires "an objective assessmentof the degree of risk presented by [the appellant's] reckless conduct" (People v Register,60 NY2d 270, 277 [1983], cert denied 466 US 953 [1984]; see People v Davis,72 NY2d 32, 36 [1988]). The conduct must actually create a substantial risk of serious physicalinjury, and a defendant's "subjective intent is irrelevant" (People v Davis, 72 NY2d at 36;see Matter of Kysean D.S., 285 AD2d 994, 995 [2001]).
An objective assessment of the facts in this case reveals that the appellant's actions did notcreate a "substantial risk of serious physical injury to another person" (Penal Law §120.20). At most, the evidence merely shows that the appellant was accessorially in possession ofgasoline in a nonapproved container. As stated by the Court of Appeals, the crime of recklessendangerment "must be judged by the risk created at the time of the incident" (People vDavis, 72 NY2d at 37 n). Here, there was testimony from a fire marshal that carryinggasoline in the plastic bottle was dangerous because the bottle was not puncture-resistant, did nothave a vapor-proof cap, and, if it leaked or vapor escaped when it was near "heat," then thecontents might ignite. Notably, however, there was no evidence that the plastic bottle waspunctured or that it was leaking, or that vapor was escaping from the cap. More importantly,there was no evidence of the bottle being exposed to heat, which the fire marshal opined wasnecessary to render the appellant's conduct dangerous. The mere presence of the lighter in thesame bag as the bottle was insufficient to provide the necessary heat, since there was no evidencethat the lighter was ever ignited, or that there were any sparks from the lighter, or even that thelighter was operable.
A review of our jurisprudence reveals no case where this Court has found recklessendangerment in the absence of actual and "substantial risk of serious physical injury" (PenalLaw § 120.20) where the only facts are that gasoline was carried in a non-approvedcontainer and no fire or any kind of explosion occurred (cf. People v Roth, 80 NY2d 239[1992]; People v Canty, 135 AD2d 721 [1987]; People v Macellaro, 131 AD2d699 [1987]). Accordingly, inasmuch as the evidence did not establish the necessary actual and"substantial risk of serious physical injury" set forth in Penal Law § 120.20, the FamilyCourt erred in concluding that the appellant committed acts which, if committed by an adult,would have constituted the crime of reckless endangerment in the second degree. Skelos, J.P.,Santucci, Leventhal and Hall, JJ., concur.