IN RE: ROBERT H. (2005)

Supreme Court, Appellate Division, First Department, New York.

IN RE: ROBERT H., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: April 21, 2005

MARLOW, J.P., ELLERIN, NARDELLI, WILLIAMS, SWEENY, JJ.

Steven Banks, The Legal Aid Society, New York (Susan Clement of counsel), for Appellant. Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for Presentment Agency.

Order of disposition, Family Court, Bronx County (Harold J. Lynch, J.), entered on or about September 5, 2003, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the offense of unauthorized use of a vehicle in the third degree, and placed him with the Office of Children and Family Services for a period of 12 months, unanimously 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. The evidence establishes that appellant knew he lacked the owner's consent to be in the car in question (see Matter of Raquel M., 99 N.Y.2d 92, 752 N.Y.S.2d 268, 782 N.E.2d 64 [2002] ). The court properly applied the presumption contained in Penal Law § 165.05(1), and discredited appellant's testimony.

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