In re Shaundale J.

28 A.D.3d 316, 812 N.Y.S.2d 110

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2006
• Status: Published

Opinion

Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about April 6, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that appellant committed acts which, if committed by an adult, would constitute the crimes of assault in the second and third degrees and attempted assault in the third degree, and placed her on probation for a period of 18 months, unanimously modified, on the law, to the extent of vacating the adjudication as to assault in the third degree and dismissing that count of the petition, 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 (see People v Gaimari, 176 NY 84 [1903]). The teacher-victim’s credible testimony established the required intent and injury for the second-degree assault finding. To the extent that appellant is asserting a justification defense with regard to her attempted assault on a fellow student, that claim is unpreserved and without merit. As the presentment agency concedes, appellant is entitled to dismissal of the third-degree assault count as a lesser included offense of second-degree assault. Concur— Andrias, J.P., Saxe, Nardelli, Catterson and Malone, JJ.