| Matter of Brooklyn B. |
| 2010 NY Slip Op 07752 [77 AD3d 934] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Brooklyn B., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal 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 (Freeman, J.), dated October 9,2009, which, upon a fact-finding order of the same court dated September 30, 2009, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of robbery in the third degree, grand larceny in the fourth degree, criminalpossession of stolen property in the fifth degree, and menacing in the third degree, adjudged himto be a juvenile delinquent, and placed him with the New York State Office of Children andFamily Services for a period of 18 months. The appeal from the order of disposition brings up forreview the fact-finding order.
Ordered that the order of disposition is modified, on the law and as a matter of discretion inthe interest of justice, by deleting the provision thereof adjudicating the appellant a juveniledelinquent based upon the finding that he committed an act which, if committed by an adult,would have constituted the crime of menacing in the third degree, and substituting therefor aprovision dismissing that count of the petition; as so modified, the order of disposition isaffirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
The appellant failed to preserve for appellate review his contention regarding legalsufficiency of the evidence (see CPL 470.05 [2]; Matter of Omar G., 38 AD3d 549, 550 [2007]). In any event,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 itwas legally sufficient to establish, beyond a reasonable doubt, the appellant's identity as theperson who committed the acts complained of (see Matter of Trayvond W., 71 AD3d 683, 683 [2010]; Matter of Isaiah Mc., 66 AD3d1025, 1026 [2009]). Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see Matter of Hasan C., 59 AD3d 617, 617-618 [2009]; Matter of Robert A., 57 AD3d770, 771 [2008]; cf. CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear the testimony,and observe demeanor (see Matter of Hasan C., 59 AD3d at 618; Matter of RobertA., 57 AD3d at 771; cf. People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the Family Court's fact-finding determinationwith regard to the appellant's [*2]identity was not against theweight of the evidence (cf. People vRomero, 7 NY3d 633 [2006]).
However, in the exercise of our interest of justice jurisdiction, we agree with the appellantthat the evidence was legally insufficient to establish that he committed an act which, ifcommitted by an adult, would have constituted the crime of menacing in the third degree (seePenal Law § 120.15; Matterof Ashley C., 59 AD3d 715, 715-716 [2009]; Matter of Davonte B., 44 AD3d 763, 764 [2007]; Matter ofWanji W., 305 AD2d 690, 691 [2003]). Accordingly, that count of the petition must bedismissed. Dillon, J.P., Florio, Balkin and Roman, JJ., concur.