In re Angel O.

269 A.D.2d 253, 702 N.Y.S.2d 827, 2000 N.Y. App. Div. LEXIS 1549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2000
• Status: Published

Opinion

—Order of disposition, Family Court, New York County (Mary Bednar, J.), entered on or about November 24, 1998, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that appellant committed acts which, if committed by an adult, would constitute the crimes of assault in the second degree, attempted assault in the second degree, assault in the third degree, criminal possession of a weapon in the fourth degree, and attempted assault in the third degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law and the facts, to the extent of vacating the findings as to count nine (criminal possession of a weapon in the fourth degree) and count ten (attempted assault in the third degree), and dismissing those counts of the petition, and reducing count six (assault in the third degree) to attempted assault in the third degree, and otherwise affirmed, without costs.

The court’s finding that appellant committed the acts underlying the charges of assault in the second degree and attempted assault in the second degree was not against the weight of the evidence. We see no reason to disturb the court’s determinations concerning credibility, and also find ample evidence from which accessorial liability can be inferred. However, since the third-degree assault finding was not based on legally sufficient evidence that the victim suffered physical injury, and since the weapon possession and attempted third-degree assault counts should have been dismissed as lesser included offenses, we modify accordingly. Concur — Tom, J. P., Rubin, Andrias, Buckley and Friedman, JJ.