IN RE: PEDRO H.

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

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

Decided: September 18, 2003

ANDRIAS, J.P., SAXE, SULLIVAN, ROSENBERGER, and MARLOW, JJ. Diane Pazar, for Pedro H. Deborah Weiss, for Presentment Agency.

Order of disposition, Family Court, New York County (Sheldon Rand, J.), entered on or about June 26, 2002, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute menacing in the third degree, and placed him on probation for a period of 12 months with 10 hours of community service, 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.  “A person is guilty of menacing in the third degree 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).   The elements of this crime, including the requirement of physical rather than merely verbal menace, were established by evidence that appellant and three other students approached their former teacher on a subway platform, that they surrounded her and blocked her path, that one of the youths declared that she was not going anywhere since she had failed them, that appellant said “Why don't we throw her on the tracks?   A train is coming,” and that appellant reached toward her, as she escaped.