In re Mygod K.

300 A.D.2d 166, 751 N.Y.S.2d 730, 2002 N.Y. App. Div. LEXIS 12472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2002
• Status: Published

Opinion

—Order of disposition, Family Court, New York County (Mary Bednar, J.), entered on or about November 19, 2001, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that appellant had committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second degree (two counts), attempted assault in the third degree (three counts), attempted criminal trespass in the third degree and criminal mischief in the fourth degree, and placed him on probation for a period of 18 months, unanimously modified, on the law, to the extent of vacating the adjudication as to attempted assault in the third degree under the fourth and sixth counts of the petition and dismissing those counts, and otherwise affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court’s determinations concerning credibility. The credible evidence warranted the conclusion that when appellant struck and kicked the three victims, he did so with the requisite intent to cause physical injury (see Matter of Eric C., 281 AD2d 543), and the court properly rejected appellant’s version of the events. The credible evidence also sustained the trespass and mischief charges. However, the fourth and sixth counts of the petition should have been dismissed as lesser included offenses of the attempted second degree assault charges. Concur — Nardelli, J.P., Tom, Ellerin, Friedman and Marlow, JJ.