| Matter of Jason P. |
| 2010 NY Slip Op 08116 [78 AD3d 838] |
| November 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jason P., a Person Alleged to be a Juvenile Delinquent,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and NormanCorenthal 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 (Weinstein, J.), dated October 8, 2009, which,upon a fact-finding order of the same court dated August 10, 2009, made after a hearing, finding thatthe appellant committed acts which, if committed by an adult, would have constituted the crimes of gangassault in the second degree, assault in the second degree, menacing in the second degree, and criminalpossession of a weapon in the fourth degree, adjudged him to be a juvenile delinquent, and placed himon probation for a period of 18 months. The appeal from the order of disposition brings up for reviewthe fact-finding order dated August 10, 2009.
Ordered that the order of disposition is modified, on the law and the facts, by deleting the provisionthereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed an act,which if committed by an adult, would have constituted the crime of gang assault in the second degree,and substituting therefor a provision dismissing that count of the petition; as so modified, the order ofdisposition is affirmed, without costs or disbursements, and the fact-finding order is modifiedaccordingly.
The appellant was adjudged to be a juvenile delinquent upon findings that he, at the age of 14,committed acts which, if committed by an adult, would have constituted the crimes of gang assault in thesecond degree, assault in the second degree, menacing in the second degree, and criminal possession ofa weapon in the fourth degree. This was based upon an incident which occurred on February 7, 2009,wherein the appellant, and a group of other youths, allegedly assaulted the complainant, by kicking himand hitting him with their hands, a log, a two-by-four, and a bottle, causing the complainant to sustain afractured patella. We modify.
The appellant contends that the Family Court improperly found that he committed acts, which ifcommitted by an adult, would have constituted the crimes of menacing in the second [*2]degree, criminal possession of a weapon in the fourth degree, and assaultin the second degree, since there was legally insufficient evidence that he displayed or possessed adangerous instrument, or that the complainant's injury was caused by a dangerous instrument. However,that contention is not preserved for appellate review, as the appellant failed to raise those specificclaims before the Family Court (see Matter ofMelissa N., 62 AD3d 884 [2009]; cf. CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492[2008]). In any event, viewing the evidence in the light most favorable to the presentment agency(see Matter of David H., 69 NY2d 792, 793 [1987]; cf People v Contes, 60 NY2d620, 621 [1983]), we find that there is legally sufficient evidence to support the Family Court'sdetermination that the appellant committed acts, which if committed by an adult, would have constitutedthe crimes of menacing in the second degree, criminal possession of a weapon in the fourth degree, andassault in the second degree (see Penal Law § 10 [13]; § 120.05 [2]; §120.14 [1]; § 265.01 [2]). In fulfilling our responsibility to conduct an independent review of theweight of the evidence (cf. CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference to the factfinder's opportunity to view the witnesses, hear the testimony, and observedemeanor (cf. People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, weare satisfied that the findings of fact on those counts of the petition which alleged that the appellantcommitted acts, which if committed by an adult, would have constituted the crimes of assault in thesecond degree, menacing in the second degree, and criminal possession of a weapon in the fourthdegree, were not contrary to the weight of the evidence (cf. People v Romero, 7 NY3d 633 [2006]). A dangerous instrument isdefined as "any instrument, article or substance . . . which, under the circumstances inwhich it is used, attempted to be used or threatened to be used, is readily capable of causing death orother serious physical injury" (Penal Law § 10.00 [13]). The evidence presented at a fact-findinghearing was sufficient to support the Family Court's conclusion that the two-by-four used by theappellant to strike the complainant constituted a dangerous instrument within the meaning of Penal Law§ 10.00 (13), as did the log and bottle used by other participants with whom the appellant wasacting in concert (see People v Vasquez, 88 NY2d 561, 580 [1996]; People v Carter,53 NY2d 113, 116-117 [1981]; People vJohnson, 63 AD3d 470 [2009]; Matter of Shakiea B., 53 AD3d 1057, 1058 [2008]; People v Medor, 39 AD3d 362[2007]; Matter of Patricia A., 33 AD3d699, 700 [2006]).
However, the presentment agency failed to present legally sufficient evidence that the complainantsuffered serious physical injury so as to support the Family Court's finding that the appellant committedacts, which if committed by an adult, would have constituted the crime of gang assault in the seconddegree (see Penal Law § 10.00 [10]; § 120.06; People v Flores, 276AD2d 710, 711 [2000]). The injury sustained by the complainant, a fractured patella, did not constitutea serious physical injury within the meaning of Penal Law § 10.00 (10) (see People vWhite, 283 AD2d 964 [2001]; People v Phillip, 279 AD2d 802, 803-804 [2001]; People v Ham, 67 AD3d 1038 [2009];People v Adames, 52 AD3d 617[2008]; People v Gray, 30 AD3d771, 772-773 [2006]).
Since the evidence was legally sufficient to support the finding that the appellant committed acts,which if committed by an adult, would constitute the crimes of assault in the second degree, menacing inthe second degree, and criminal possession of a weapon in the fourth degree, for which the period ofprobation that was imposed is appropriate, the matter need not be remitted to the Family Court, KingsCounty, for a new order of disposition (see Family Ct Act § 352.2; Matter of Robert C., 67 AD3d 790,792-793 [2009]). Rivera, J.P., Chambers, Austin and Sgroi, JJ., concur.