IN RE: CARLOS M.

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

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

Decided: May 31, 2007

MAZZARELLI, J.P., FRIEDMAN, MARLOW, McGUIRE, MALONE, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Patricia S. Colella of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about September 29, 2006, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the second and third degrees, criminal possession of a weapon in the fourth degree (two counts), reckless endangerment in the second degree, menacing in the second and third degrees, and unlawful possession of weapons by a person under 16 (two counts), and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings as to criminal possession of a weapon in the fourth degree and menacing in the third degree and dismissing those counts of the petition, and otherwise affirmed, without costs.

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The testimony of the two eyewitnesses, along with the physical evidence, supports the inference (see generally People v. Bierenbaum, 301 A.D.2d 119, 131–140, 748 N.Y.S.2d 563 [2002], lv. denied 99 N.Y.2d 626, 760 N.Y.S.2d 107, 790 N.E.2d 281 [2003], cert. denied 540 U.S. 821, 124 S.Ct. 134, 157 L.Ed.2d 40 [2003] ) that appellant discharged a loaded firearm, endangering other persons.

As the presentment agency concedes, the court should have dismissed the fourth-degree weapon and third-degree menacing counts as lesser included offenses of third-degree possession of a weapon and second-degree menacing, respectively.