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

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

Decided: December 29, 2009

MAZZARELLI, J.P., CATTERSON, MOSKOWITZ, RICHTER, MANZANET-DANIELS, JJ. Tamara A. Steckler, The Legal Aid Society, New York (Diane Pazar of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for presentment agency.

Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about February 23, 2009, which adjudicated appellant a juvenile delinquent, upon a finding that he committed acts which, if committed by an adult, would constitute the crimes of criminal trespass in the third degree and resisting arrest, and placed him with the Office of Children and Family Services for 12 months, unanimously modified, on the law, to the extent of vacating the finding as to criminal trespass in the third degree, dismissing that count of the petition and remanding for a new dispositional hearing, and otherwise affirmed, without costs.

 The court's finding as to resisting arrest was based on legally sufficient evidence and was not against the weight of the evidence.   The evidence established that appellant entered the lobby of a school where he was not a student and, after being told to leave, unlawfully remained and then resisted arrest by struggling.   The arrest was lawful, because it was based on probable cause to believe defendant was “in violation of a personally communicated request to leave the premises from a principal, custodian or other person in charge thereof” (Penal Law § 140.10[c] ).  There is no record support for appellant's assertion that the lobby was open to the public.

 However, the criminal trespass finding was based on insufficient evidence because the petition limited the presentment agency's theory to trespass on school property “in violation of conspicuously posted rules or regulations governing entry and use thereof,” pursuant to Penal Law § 140.10(b), and there was no evidence regarding posted rules or regulations.   The supporting deposition did not cure this defect so as to afford appellant sufficient notice of this charge, and the presentment agency never sought to amend the petition.