In re Daniel M.

37 A.D.3d 1101, 830 N.Y.S.2d 410, 831 N.Y.S.2d 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2007
• Status: Published

Opinion

Appeal from an order of the Family Court, Erie County (James H. Dillon, J.), entered June 12, 2006 in a proceeding pursuant to Family Court Act article 3. The order adjudged that respondent is a juvenile delinquent and placed respondent on probation for a period of 12 months.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order adjudicating him to be a juvenile delinquent based on findings that he committed acts that, if committed by an adult, would constitute the crimes of grand larceny in the fourth degree (Penal Law § 155.30 [5]), menacing in the third degree (§ 120.15), and obstructing governmental administration in the second degree (§ 195.05). We reject the contention of respondent that Family Court erred in denying his motion to dismiss the petition with respect to the crime of menacing in the third degree pursuant to Family Court Act § 311.2 on the ground that the petition is facially insufficient with respect to that crime. The petition and supporting statements provided respondent with “ ‘notice sufficient to prepare a defense and are adequately detailed to prevent [respondent] from being tried twice for the same offense’ ” (People v Konieczny, 2 NY3d 569, 575 [2004], quoting People v Casey, 95 NY2d 354, 360 [2000]). The petition and supporting statements allege that the police officer was placed in fear of physical injury as a result of physical menacing, i.e., the conduct of respondent in grabbing the police officer’s flashlight and raising it above his head as if to strike the officer.

Also contrary to respondent’s contention, the evidence presented at the hearing on the petition is legally sufficient to establish that respondent committed acts that, if committed by an adult, would constitute the crimes of menacing in the third degree and obstruction of governmental administration. With respect to the crime of menacing, two officers testified that, while the police were attempting to arrest respondent’s father, respondent grabbed a flashlight from an officer’s hand and raised it above his head as if to strike the officer. That officer testified that he stepped back because he feared that respondent would strike him with the flashlight. The presentment agency thus adduced legally sufficient evidence establishing that the officer was placed in fear of physical injury (cf. People v Peterkin, 245 AD2d 1050, 1051 [1997], lv denied 91 NY2d 1011 [1998]; People v Sylla, 7 Misc 3d 8,10 [App Term, 2d Dept 2005], lv denied 4 NY3d 857 [2005]). With respect to the crime of obstructing governmental administration, we conclude that the testimony that respondent grabbed the flashlight from the officer and raised it as if to strike the officer while the police were attempting to arrest his father is legally sufficient to establish that respondent was attempting to interfere with the arrest of his father (see Matter of Joshua C., 289 AD2d 1095 [2001]; see also Matter of Reginald B., 249 AD2d 979 [1998]). Present— Hurlbutt, J.E, Martoche, Smith, Fahey and Feradotto, JJ.