IN RE: JACCOB S. (2010)

Order, Family Court, Bronx County (Clark V. Richardson, J. at fact-finding hearing; Monica Drinane, J. at disposition), entered on or about August 18, 2009, 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 crime of menacing in the third degree, and placed him on probation for a period of 12 months, unanimously reversed, on the law, without costs, and the petition dismissed.

The court's finding was based on legally insufficient evidence. A person commits the crime of third-degree menacing when, “by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury” (Penal Law § 120.15). According to the complainant's testimony, while appellant's companion made physically menacing gestures and stated, “Get out of my face, before I cut you, you Mexican,” appellant merely told complainant to “swim back to [his] country.” Appellant's offensive comment, by itself, was insufficient to support the charge, which requires “physical menace” (see Matter of Akheem B., 308 A.D.2d 402, 403 [2003], lv denied 1 NY3d 506 [2004] ). Even assuming appellant's companion committed acts constituting third-degree menacing, the evidence does not support an inference that, in making this crude remark, appellant shared his companion's intent to place the complainant in fear of harm, or intentionally aided his companion in doing so (see Penal Law § 20.00).