In re Harry S.

236 A.D.2d 223, 654 N.Y.S.2d 287, 1997 N.Y. App. Div. LEXIS 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1997
• Status: Published

Opinion

—Order of disposition, Family Court, Bronx County (Rhoda Cohen, J.), entered on or about November 30, 1995, adjudicating appellant a juvenile delinquent, following a fact-finding determination that appellant committed acts which, if committed by an adult, would constitute the crimes of criminal sale of a controlled substance in the third and fifth degrees and criminal possession of a controlled substance in the third and seventh degrees, and placing him with the Division for Youth for a period of 18 months, unanimously modified, on the law and the facts, to the extent of vacating the finding related to seventh-degree criminal possession, dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s findings were based on legally sufficient evidence and were not against the weight of the evidence. There was ample circumstantial evidence of guilt.

As the presentment agency concedes, the finding and order related to the criminal possession of a controlled substance in the seventh degree should be vacated since the latter is a lesser included offense of criminal possession of a controlled substance in the third degree. Concur—Murphy, P. J., Rubin, Tom and Andrias, JJ.