IN RE: PERCELL McK. (2006)

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 N.Y. 84, 94, 68 N.E. 112 [1903] ).   The credible evidence disproved the defense of justification beyond a reasonable doubt.

However, 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.