IN RE: ALEX R. (Anonymous)

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

IN RE: ALEX R. (Anonymous), appellant.

Decided: January 30, 2007

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, DAVID S. RITTER, and DANIEL D. ANGIOLILLO, JJ. Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Alan G. Krams of counsel), for respondent.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Lubow, J.), dated November 7, 2005, which, upon a fact-finding order of the same court dated September 30, 2005, made after a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree, adjudged him to be a juvenile delinquent and placed him on probation for a period of 18 months and, inter alia, directed him to perform 60 hours of community service.   The appeal brings up for review the fact-finding order dated September 30, 2005.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

Viewing the evidence adduced at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of Donte K., 31 A.D.3d 448, 449, 817 N.Y.S.2d 506;  Matter of Felix D., 30 A.D.3d 598, 599, 818 N.Y.S.2d 142;  Matter of Nikita P., 3 A.D.3d 499, 500, 769 N.Y.S.2d 602), it was legally sufficient to establish that the appellant committed acts which, if committed by an adult, would have constituted the crime of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00[1] ). Moreover, resolution of issues of credibility is primarily a matter to be determined by the trier of fact, which saw and heard the witnesses (see Matter of Jason Z., 19 A.D.3d 702, 797 N.Y.S.2d 551;  Matter of James B., 262 A.D.2d 480, 481, 692 N.Y.S.2d 417;  cf. People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).   Upon the exercise of our factual review power, we are satisfied that the Family Court's fact-finding determination was not against the weight of the evidence (cf. CPL 470.15 [5];  People v. Romero, supra ).

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