IN RE: CARLTON F. (Anonymous) (2006)

In two juvenile delinquency proceedings pursuant to Family Court Act article 3, the appeals are from (1) a fact-finding order of the Family Court, Queens County (Weinstein, J.), dated January 26, 2004 (Docket No. D-25806/03), which, after a fact-finding hearing, found that the appellant committed an act which, if committed by an adult, would have constituted the crime of resisting arrest, (2) an order of disposition of the same court dated January 27, 2004 (Docket Nos. D-25806/03 and D-22763/03), which, upon the fact-finding order dated January 26, 2004, and a second fact-finding order of the same court dated December 4, 2003 (Docket No. D-22763/03), after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of stolen property in the fifth degree and petit larceny, adjudged him to be a juvenile delinquent and placed him on probation for a period of 12 months, and (3) an amended order of disposition of the same court dated June 17, 2005.   The appeal from the amended order of disposition dated June 17, 2005, brings up for review the fact-finding order dated December 4, 2003.

ORDERED that the appeals from the fact-finding order dated January 26, 2004, and the order of disposition dated January 27, 2004, are dismissed, without costs or disbursements, as those orders were superseded by the amended order of disposition dated June 17, 2005;  and it is further,

 ORDERED that the appeal from so much of the amended order of disposition dated June 17, 2005, as placed the appellant on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as that period of probation commenced with the entry of the order of disposition dated January 27, 2004, and has since expired (see Matter of Alphonso W., 8 A.D.3d 492, 493, 778 N.Y.S.2d 530);  and it is further,

ORDERED that the amended order of disposition dated June 17, 2005, is affirmed insofar as reviewed, without costs or disbursements.

 The orders appealed from arose from two separate incidents.   On March 19, 2003, the appellant was arrested for disorderly conduct;  the charge was subsequently changed to resisting arrest.   On August 5, 2003, the appellant was arrested again, this time for shoplifting.

With respect to the first incident, viewing the evidence in the light most favorable to the presentment agency (see Matter of Takeya B., 304 A.D.2d 825, 826, 757 N.Y.S.2d 887;  Matter of Stafford B., 187 A.D.2d 649, 650, 591 N.Y.S.2d 785;  cf. People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed acts which, had they been committed by an adult, would have constituted resisting arrest (see Matter of Shubin B., 5 A.D.3d 217, 218, 772 N.Y.S.2d 827;  Matter of Leonard D., 185 A.D.2d 315, 316, 587 N.Y.S.2d 216;  Matter of Charles M., 143 A.D.2d 96, 97, 531 N.Y.S.2d 346).

Penal Law § 205.30 defines resisting arrest as intentionally preventing or attempting to prevent a police officer from effecting an authorized arrest (see People v. Jensen, 86 N.Y.2d 248, 253, 630 N.Y.S.2d 989, 654 N.E.2d 1237;  Matter of Eric C., 281 A.D.2d 543, 544, 722 N.Y.S.2d 61).   Contrary to the appellant's contention, the evidence here established that the arresting officer was “justified in concluding that [the appellant] was intentionally or recklessly creating a substantial risk that public inconvenience, annoyance or alarm would occur” (People v. Shapiro, 96 A.D.2d 626, 627, 464 N.Y.S.2d 880;  see Penal Law § 240.20;  Matter of Leonard D., supra ).   Since the officer reasonably believed that the appellant was at least 16 years old and had probable cause to arrest him for committing the offense of disorderly conduct (see Penal Law § 240.20[1], [5], [7] ), the arrest was authorized and, therefore, the resisting arrest charge was established by legally sufficient evidence (see Matter of Leonard D., supra;  Matter of James T., 189 A.D.2d 580, 592 N.Y.S.2d 36;  Matter of Charles M., supra ).

With respect to the second incident we find that the evidence, viewed in the light most favorable to the presentment agency, was legally sufficient to support the inference that the appellant acted with larcenous intent and knowledge that the merchandise he was holding had been stolen (see People v. Derrell, 6 A.D.3d 625, 626, 774 N.Y.S.2d 805;  People v. Gonzalez, 246 A.D.2d 667, 668, 666 N.Y.S.2d 950).   Accordingly, the evidence was legally sufficient to prove beyond a reasonable doubt that the appellant committed acts which, had they been committed by an adult, would have constituted petit larceny and criminal possession of stolen property in the fifth degree (see Penal Law §§ 155.25, 165.40).

Finally, the Family Court's findings with regard to both incidents were not against the weight of the evidence (see Matter of Joseph J., 205 A.D.2d 776, 777, 614 N.Y.S.2d 316;  People v. McCrea, 194 A.D.2d 742, 743-744, 600 N.Y.S.2d 84;  cf. People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).