IN RE: JAVIER F. (Anonymous) (2004)

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Weinstein, J.), dated March 17, 2003, which, upon a fact-finding order of the same court (Pearce, J.), dated December 16, 2002, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crime of unauthorized use of a vehicle in the third degree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months.   The appeal brings up for review the fact-finding order dated December 16, 2002.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed.

The appellant was arrested early one morning after the police observed him leaning partially inside the open door of a parked vehicle with a broken passenger side window.   Various property items had been removed from the vehicle and placed on the sidewalk.

The presentment agency correctly concedes on appeal that the evidence was legally insufficient to establish that the appellant committed acts, which, if committed by an adult, would have constituted the crime of unauthorized use of a vehicle in the third degree.   The vehicle remained in the same location where the owner's son had parked it the previous afternoon, and there was no evidence that the appellant had the means of operating the vehicle.   Under the circumstances, the presentment agency failed to establish that the appellant exercised the requisite dominion or control over the vehicle (see Matter of Archangel O., 157 A.D.2d 729, 551 N.Y.S.2d 785;  People v. Gray, 154 A.D.2d 547, 546 N.Y.S.2d 387;  Matter of Ruben P., 151 A.D.2d 485, 542 N.Y.S.2d 276;  cf.  People v. Roby, 39 N.Y.2d 69, 382 N.Y.S.2d 739, 346 N.E.2d 540;  People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136).   Accordingly, we reverse the order of disposition, and dismiss the petition.