Matter of Esmeldyn P.

124 A.D.3d 542, 2 N.Y.S.3d 108

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 2015
• Docket: 14057
• Status: Published

Opinion

Order of disposition, Family Court, Bronx County (Peter J. Passidomo, J), entered on or about November 20, 2013, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of assault in the second degree, criminal possession of a weapon in the fourth degree (two counts) and assault in the third degree, and also committed the act of unlawful possession of a weapon by a person under 16, and placed him on probation for a period of 14 months, unanimously modified, on the law, to the extent of vacating the finding as to assault in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

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 credibility determinations. The evidence, including testimony that defendant stabbed an unarmed person who was walking away from an altercation, disproved appellant’s justification defense beyond a reasonable doubt.

To the extent that appellant is challenging an evidentiary ruling made by the court, we find that claim to be unavailing, and that it would not, in any event, warrant a different result regarding the sufficiency and weight of the evidence.

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 — Mazzarelli, J.P., Renwick, DeGrasse, Richter and Clark, JJ.