In re Akheem B.

Appellate Division of the Supreme Court of New York

In re Akheem B.

308 A.D.2d 402, 764 N.Y.S.2d 630, 2003 N.Y. App. Div. LEXIS 9797

Appellate Division of the Supreme Court of the State of New York·Decided September 25, 2003·Published·Cited by 4 cases

Opinion

—Order of disposition, Family Court, New York County (Sheldon Rand, J.), entered September 4, 2002, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third degree and menacing in the third degree, and placed him on probation for a period of 24 months, unanimously modified, on the law, to the extent of vacating the menacing finding and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding on the controlled substance charge was based on legally sufficient evidence and was not against the [403] weight of the evidence. Issues of credibility and identification, including the weight to be given to inconsistencies in testimony, were properly considered by the court and there is no basis for disturbing its determinations. The credible evidence established that appellant possessed two bags of cocaine with intent to sell them.

As the presentment agency concedes, the menacing finding was based on legally insufficient evidence because appellant made only a verbal threat, whereas the statute requires “physical menace” (Penal Law § 120.15). Concur — Saxe, J.P., Rosenberger, Williams, Lerner and Friedman, JJ.

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—Order of disposition, Family Court, New York County (Sheldon Rand, J.), entered September 4, 2002, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third degree and menacing in the third degree, and placed him on probation for a period of 24 months, unanimously modified, on the law, to the extent of vacating the menacing finding and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding on the controlled substance charge was based on legally sufficient evidence and was not against the [403] weight of the evidence. Issues of credibility and identification, including the weight to be given to inconsistencies in testimony, were properly considered by the court and there is no basis for disturbing its determinations. The credible evidence established that appellant possessed two bags of cocaine with intent to sell them.

As the presentment agency concedes, the menacing finding was based on legally insufficient evidence because appellant made only a verbal threat, whereas the statute requires “physical menace” (Penal Law § 120.15). Concur — Saxe, J.P., Rosenberger, Williams, Lerner and Friedman, JJ.

In re Akheem B., 308 A.D.2d 402, 764 N.Y.S.2d 630, 2003 N.Y. App. Div. LEXIS 9797 (N.Y. Ct. App. 2003).

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Opinion

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