IN RE: MAXIMUS G. (Anonymous) (2018)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 3, Maximus G. appeals from an order of disposition of the Family Court, Kings County (Lillian Wan, J.), dated April 6, 2017.  The order of disposition adjudicated Maximus G. a juvenile delinquent.  The appeal from the order of disposition brings up for review an order of fact-finding of the same court dated January 5, 2017, which, after a hearing, found that the appellant committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree.

ORDERED that the order of disposition is modified, on the law, by deleting the provision thereof which adjudicated the appellant a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crime of robbery in the third degree, and substituting therefor a provision dismissing that count of the petition;  as so modified, the order of disposition is affirmed, without costs or disbursements, and the order of fact-finding is modified accordingly.

The appellant was accused of stealing the complainant's purse.  Following a fact-finding hearing, he was found to have committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree.

The appellant contends, among other things, that the evidence was legally insufficient to establish:  (1) his identity as the perpetrator of the subject theft and (2) the elements of forcibly stealing and physical injury as to the count of robbery in the second degree.  The appellant also contends that the fact-finding determination was against the weight of the evidence.

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant's commission of all the elements of the charged crimes beyond a reasonable doubt” (Matter of Danielle B., 94 A.D.3d 757, 758, 941 N.Y.S.2d 685;  see Matter of Malik B., 151 A.D.3d 842, 843, 56 N.Y.S.3d 270;  Matter of Chakelton M., 111 A.D.3d 732, 733, 975 N.Y.S.2d 95).  Here, viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621), we find that it was legally sufficient to establish, beyond a reasonable doubt, the appellant's identity as the person who committed the acts at issue (see Matter of Aaliyah R., 144 A.D.3d 923, 42 N.Y.S.3d 185;  Matter of Jarell W., 137 A.D.3d 1154, 1154–1155, 26 N.Y.S.3d 877).  In addition, the evidence was legally sufficient to establish, beyond a reasonable doubt, the elements of forcibly stealing (cf. Penal Law § 160.00;  People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178) and physical injury as to the count of robbery in the second degree (cf. Penal Law § 160.10[2][a];  People v. Williams, 154 A.D.3d 497, 62 N.Y.S.3d 335).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the fact finder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Malik B., 151 A.D.3d at 843, 56 N.Y.S.3d 270).  Upon reviewing the record, we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence.

However, since the appellant was found to have committed acts which, if committed by an adult, would have constituted the crime of robbery in the second degree, the count of the petition charging robbery in the third degree should have been dismissed as a lesser-included offense (see CPL 1.20[37];  300.40[3][b];  Matter of Eduardo D.-B., 18 A.D.3d 468, 469, 794 N.Y.S.2d 122).

The appellant's remaining contentions are, for the most part, unpreserved for appellate review and, in any event, without merit.

RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.