| Matter of Tafari S. |
| 2011 NY Slip Op 03620 [83 AD3d 1084] |
| April 26, 2011 |
| Appellate Division, Second Department |
| In the Matter of Tafari S., 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, Tafari S.appeals from an order of disposition of the Family Court, Kings County (Turbow, J.), dated June17, 2010, which, upon a fact-finding order of the same court dated April 30, 2010, made after ahearing, finding that he had committed acts which, if committed by an adult, would haveconstituted the crimes of attempted robbery in the second degree and menacing in the seconddegree, adjudged him to be a juvenile delinquent, and placed him in the custody of the New YorkState Office of Children and Family Services for a period of 18 months, with a minimumplacement period of 6 months and without credit for time served. The appeal from the order ofdisposition brings up for review the fact-finding order.
Ordered that the order of disposition is modified, on the law and the facts, (1) by deleting theprovisions thereof adjudicating the appellant a juvenile delinquent based upon the findings thathe committed acts which, if committed by an adult, would have constituted the crimes ofattempted robbery in the second degree and menacing in the second degree, and (2) by addingprovisions thereto adjudicating the appellant a juvenile delinquent based upon findings that hecommitted acts which, if committed by an adult, would have constituted the crimes of attemptedrobbery in the third degree and menacing in the third degree; as so modified, the order ofdisposition is affirmed, without costs or disbursements, and the fact-finding order is modifiedaccordingly.
The evidence was legally insufficient to establish beyond a reasonable doubt that the then15-year-old appellant committed acts which, if committed by an adult, would have constitutedthe crimes of attempted robbery in the second degree (see Penal Law §§110.00, 160.10 [2] [b]) and menacing in the second degree (see Penal Law §120.14 [1]). Here, the arresting officer observed the appellant take a gun from his waist, point thegun at the victim's right side, and touch the victim's side with the gun as he pulled the victim'spurse strap from her shoulder. However, the victim testified, inter alia, that she did not knowwhat caused the "poke" which she felt in her side, that she did not see anyone with a gun, andthat she only observed the gun after it was dropped to the ground as the arresting officerapproached. Accordingly, the presentment agency failed to establish that the victim "actuallyperceived" the display of what appeared to be a firearm (People v Lopez, 73 NY2d 214,220 [1989]; see Penal Law § 160.10 [2] [b]; § 120.14 [1]; People vBaskerville, 60 NY2d 374, 381 [1983]; Matter of Nicholas M., 11 AD3d 545 [2004];People v York, 134 AD2d 637 [1987]). However, the evidence was legally sufficient toestablish that the appellant committed acts which, [*2]ifcommitted by an adult, would constitute the lesser crimes of attempted robbery in the thirddegree (see Penal Law §§ 110.00, 160.05) and menacing in the third degree(see Penal Law § 120.15), and we modify the findings accordingly.
Although the fact-finding order and the order of disposition must be modified in accordancewith the foregoing, the matter need not be remitted to the Family Court, Kings County, for a neworder of disposition because the period of placement imposed is appropriate and commensuratewith the appellant's conduct (see e.g. Matter of Robert C., 67 AD3d 790, 792-793[2009]). Skelos, J.P., Leventhal, Austin and Miller, JJ., concur.