In re Peter L.

Appellate Division of the Supreme Court of New York

In re Peter L.

233 A.D.2d 257, 650 N.Y.S.2d 543, 1996 N.Y. App. Div. LEXIS 12150

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

DecidedNovember 26, 1996

StatusPublished

Cited by2 cases

This text of 233 A.D.2d 257 (In re Peter L.) 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 Peter L., 233 A.D.2d 257, 650 N.Y.S.2d 543, 1996 N.Y. App. Div. LEXIS 12150 (N.Y. Ct. App. 1996).

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Opinion

Order of disposi[258]*258tion, Family Court, New York County (George Jurow, J.), entered. November 22, 1995, which adjudicated respondent a juvenile delinquent upon a finding that he committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees and menacing in the second and third degrees, and placed him on probation for a period of 15 months, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the conviction for menacing in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

Respondent’s guilt was established by the complainant’s testimony, properly credited by Family Count, that respondent hit him twice in the face with his fist and three times in the neck and back with a metal pipe, while he was surrounded by several individuals, one of whom also hit him, which actions demonstrated respondent’s intent to cause reasonable fear of injury. Absent argument from the presentment agency as to whether the third-degree menacing count should be dismissed as a lesser included offense of the second-degree menacing count, we dismiss the third-degree menacing count as a matter of discretion (see, CPL 300.40 [3] [a]; cf., People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780). Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.

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Order of disposi[258]*258tion, Family Court, New York County (George Jurow, J.), entered. November 22, 1995, which adjudicated respondent a juvenile delinquent upon a finding that he committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees and menacing in the second and third degrees, and placed him on probation for a period of 15 months, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the conviction for menacing in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

Respondent’s guilt was established by the complainant’s testimony, properly credited by Family Count, that respondent hit him twice in the face with his fist and three times in the neck and back with a metal pipe, while he was surrounded by several individuals, one of whom also hit him, which actions demonstrated respondent’s intent to cause reasonable fear of injury. Absent argument from the presentment agency as to whether the third-degree menacing count should be dismissed as a lesser included offense of the second-degree menacing count, we dismiss the third-degree menacing count as a matter of discretion (see, CPL 300.40 [3] [a]; cf., People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780). Concur—Murphy, P. J., Ross, Tom, Mazzarelli and Andrias, JJ.

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Bluebook (online)

233 A.D.2d 257, 650 N.Y.S.2d 543, 1996 N.Y. App. Div. LEXIS 12150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-peter-l-nyappdiv-1996.

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