In re Percell McK.

Appellate Division of the Supreme Court of New York

In re Percell McK.

30 A.D.3d 1128, 819 N.Y.S.2d 1

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

DecidedJune 6, 2006

StatusPublished

This text of 30 A.D.3d 1128 (In re Percell McK.) 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 Percell McK., 30 A.D.3d 1128, 819 N.Y.S.2d 1 (N.Y. Ct. App. 2006).

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Opinion

Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 13, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of attempted robbery in the first and second degrees, criminal possession of a weapon in the fourth degree and menacing in the second degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the adjudication as to the criminal possession of a weapon in the fourth degree and dismissing that count of the petition, and otherwise affirmed, without costs.

Except as indicated, 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 determination concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). The credible evidence disproved the defense of justification beyond a reasonable doubt.

[1129]*1129However, as the presentment agency concedes, appellant is entitled to dismissal of the weapon count (Penal Law § 265.01 [1]) because the knife in question was not a gravity knife or switchblade. Concur—Tom, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.

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Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 13, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of attempted robbery in the first and second degrees, criminal possession of a weapon in the fourth degree and menacing in the second degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the adjudication as to the criminal possession of a weapon in the fourth degree and dismissing that count of the petition, and otherwise affirmed, without costs.

Except as indicated, 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 determination concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). The credible evidence disproved the defense of justification beyond a reasonable doubt.

[1129]*1129However, as the presentment agency concedes, appellant is entitled to dismissal of the weapon count (Penal Law § 265.01 [1]) because the knife in question was not a gravity knife or switchblade. Concur—Tom, J.E, Marlow, Gonzalez, Sweeny and Catterson, JJ.

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Bluebook (online)

30 A.D.3d 1128, 819 N.Y.S.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-percell-mck-nyappdiv-2006.

Opinion

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