In re Daniel R.

49 A.D.3d 266, 853 N.Y.2d 42

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2008
• Status: Published

Opinion

Appellant’s challenge to the facial sufficiency of the menacing count of the petition is without merit. The petition and its supporting deposition contained specific allegations supporting the element of intent to place the victim in fear of physical injury (see Penal Law § 120.15), namely, that appellant threatened to injure the victim, struck him, and threatened to cause further injury.

To the extent that appellant is challenging the legal sufficiency of the evidence presented at the fact-finding hearing, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also conclude that the court’s finding was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court’s determinations concerning credibility. The evidence established that appellant punched the victim in the face, causing bleeding. Evidence that appellant continued to make threats to hurt the victim after he had already punched him twice and had to be restrained, and that the victim was frightened by these threats, was sufficient to establish the elements of menacing (see Matter of Troy F., 40 AD3d 352 [2007]). Concur— Andrias, J.P., Friedman, Buckley, McGuire and Moskowitz, JJ.