In re Joshua S.

Appellate Division of the Supreme Court of New York

In re Joshua S.

49 A.D.3d 469, 853 N.Y.2d 877

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2008

StatusPublished

This text of 49 A.D.3d 469 (In re Joshua S.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Joshua S., 49 A.D.3d 469, 853 N.Y.2d 877 (N.Y. Ct. App. 2008).

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Opinion

The court’s fact-finding determination was based on legally sufficient evidence and 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 identification and credibility. The testimony of the victim and eyewitness provided ample evidence to support the inference that appellant was a participant in the crimes and not a bystander.

As the presentment agency concedes, the finding as to felony assault (Penal Law § 120.05 [6]) should be vacated because there was no underlying felony other than the assault itself, and the [470]*470third-degree assault finding should be vacated as a lesser included offense under the remaining second-degree assault count. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.

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The court’s fact-finding determination was based on legally sufficient evidence and 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 identification and credibility. The testimony of the victim and eyewitness provided ample evidence to support the inference that appellant was a participant in the crimes and not a bystander.

As the presentment agency concedes, the finding as to felony assault (Penal Law § 120.05 [6]) should be vacated because there was no underlying felony other than the assault itself, and the [470]*470third-degree assault finding should be vacated as a lesser included offense under the remaining second-degree assault count. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.

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Bluebook (online)

49 A.D.3d 469, 853 N.Y.2d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-joshua-s-nyappdiv-2008.

Opinion

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