In re Donovan B.

278 A.D.2d 95, 717 N.Y.S.2d 180, 2000 N.Y. App. Div. LEXIS 13036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2000
• Status: Published

Opinion

Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about January 19, 1999, 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 riot in the second degree and unlawful assembly, and placed him in the custody of the New York State Division for Youth for a period of 12 months, unanimously affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. The evidence established the requisite element of acting in concert with at least four other persons (Penal Law §§ 240.05, 240.10). Testimony that appellant, who was wearing blue clothing associated with the “Crips” gang, was engaged in a punching and kicking fight with an individual wearing red, associated with the “Bloods” gang, in extremely close spatial and temporal proximity to a battle between large groups of “Crips” and “Bloods,” warranted the reasonable inference that appellant was a participant in the gang fight.

The court correctly found that a statement by appellant was part of the res gestae and was not a custodial statement requiring statutory notice. Appellant did not challenge the court’s interpretation of a police officer’s testimony as signifying that appellant made this statement in the course of the criminal acts. Concur — Rosenberger, J. P., Wallach, Saxe, Buckley and Friedman, JJ.