DANIEL v. ERIE COUNTY ATTORNEY (2007)

 Respondent appeals from an order adjudicating him to be a juvenile delinquent based on findings that he committed acts that, if committed by an adult, would constitute the crimes of grand larceny in the fourth degree (Penal Law § 155.30[5] ), menacing in the third degree (§ 120.15), and obstructing governmental administration in the second degree (§ 195.05).   We reject the contention of respondent that Family Court erred in denying his motion to dismiss the petition with respect to the crime of menacing in the third degree pursuant to Family Court Act § 311.2 on the ground that the petition is facially insufficient with respect to that crime.   The petition and supporting statements provided respondent with “ ‘notice sufficient to prepare a defense and are adequately detailed to prevent [respondent] from being tried twice for the same offense’ ” (People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626, quoting People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233).   The petition and supporting statements allege that the police officer was placed in fear of physical injury as a result of physical menacing, i.e., the conduct of respondent in grabbing the police officer's flashlight and raising it above his head as if to strike the officer.

 Also contrary to respondent's contention, the evidence presented at the hearing on the petition is legally sufficient to establish that respondent committed acts that, if committed by an adult, would constitute the crimes of menacing in the third degree and obstruction of governmental administration.   With respect to the crime of menacing, two officers testified that, while the police were attempting to arrest respondent's father, respondent grabbed a flashlight from an officer's hand and raised it above his head as if to strike the officer.   That officer testified that he stepped back because he feared that respondent would strike him with the flashlight.   The presentment agency thus adduced legally sufficient evidence establishing that the officer was placed in fear of physical injury (cf. People v. Peterkin, 245 A.D.2d 1050, 1051, 667 N.Y.S.2d 559, lv. denied 91 N.Y.2d 1011, 676 N.Y.S.2d 139, 698 N.E.2d 968;  People v. Sylla, 7 Misc.3d 8, 10, 792 N.Y.S.2d 764 [App. Term, 2d Dept.], lv. denied 4 N.Y.3d 857, 797 N.Y.S.2d 431, 830 N.E.2d 330).   With respect to the crime of obstructing governmental administration, we conclude that the testimony that respondent grabbed the flashlight from the officer and raised it as if to strike the officer while the police were attempting to arrest his father is legally sufficient to establish that respondent was attempting to interfere with the arrest of his father (see Matter of Joshua C., 289 A.D.2d 1095, 735 N.Y.S.2d 324;  see also Matter of Reginald B., 249 A.D.2d 979, 671 N.Y.S.2d 381).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: