| Matter of Fabian J. |
| 2013 NY Slip Op 01199 [103 AD3d 564] |
| February 26, 2013 |
| Appellate Division, First Department |
| In the Matter of Fabian J., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel),for presentment agency.
Order of disposition, Family Court, Bronx County (Jeanette Ruiz, J.), entered on orabout January 4, 2012, which adjudicated appellant a juvenile delinquent upon afact-finding determination that he committed acts that, if committed by an adult, wouldconstitute the crimes of robbery in the second degree, grand larceny in the fourth degree,criminal possession of stolen property in the fifth degree, and two counts of menacing inthe third degree, and placed him on enhanced supervision probation for a period of 12months, unanimously modified, on the law, to the extent of vacating the menacingfinding under the fifth count of the petition and dismissing that count, and otherwiseaffirmed, without costs.
We reject appellant's arguments concerning the sufficiency and weight of theevidence supporting the "aided by another person actually present" (Penal Law §160.10 [1]) element of second-degree robbery (see People v Danielson, 9 NY3d 342, 348-349 [2007]).There is no basis for disturbing the court's credibility determinations. The evidencesupports the inference that a second person, acting at appellant's direction, took part inthe robbery by placing himself where he could intimidate the victim and be ready torender immediate assistance to appellant (see e.g. People v Stokes, 278AD2d 18 [2000], lv denied 96 NY2d 763 [2001]).[*2]
The fifth count of the petition wasjurisdictionally defective. The factual allegations described a contingent threat ofpossible future harm, which did not constitute third-degree menacing (see PenalLaw § 120.15). Concur—Mazzarelli, J.P., Acosta, Freedman, Richter andGische, JJ.