IN RE: ASHLEY C. (Anonymous)

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

IN RE: ASHLEY C. (Anonymous), appellant.

Decided: February 24, 2009

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ. Emmanuel F. Ntiamoah, Brooklyn, N.Y., for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Ronald E. Sternberg 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, Kings County (Turbow, J.), dated April 22, 2008, which, upon a fact-finding order of the same court dated January 30, 2008, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crime of menacing in the third degree, adjudged her to be a juvenile delinquent and placed her with the Office of Children and Family Services for a period of 12 months.   The appeal brings up for review the fact-finding order.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, the petition is dismissed, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance with Family Court Act § 375.1.

As correctly conceded in the presentment agency's brief, the complainant in this case did not testify to the effect that she feared death, imminent serious physical injury, or physical injury.   Thus, even when reviewing 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 conclude that the evidence was legally insufficient to support the finding that the appellant committed an act which, if committed by an adult, would have constituted the crime of menacing in the third degree (see Penal Law § 120.15;  Matter of Davonte B., 44 A.D.3d 763, 764-765, 844 N.Y.S.2d 68;  Matter of Willie W., 32 A.D.3d 479, 480, 819 N.Y.S.2d 478;  Matter of Anisha McG., 27 A.D.3d 749, 750-751, 810 N.Y.S.2d 918;  Matter of Rosalis D., 305 A.D.2d 407, 408, 758 N.Y.S.2d 535;  Matter of Wanji W., 305 A.D.2d 690, 691-692, 761 N.Y.S.2d 661;  Matter of Michael H., 294 A.D.2d 364, 365, 742 N.Y.S.2d 103;  Matter of Steven W., 294 A.D.2d 370, 371, 741 N.Y.S.2d 888;  Matter of Akida L., 170 A.D.2d 680, 681, 567 N.Y.S.2d 93;  see also People v. Peterkin, 245 A.D.2d 1050, 1051, 667 N.Y.S.2d 559;  cf. Matter of John F., 12 A.D.3d 509, 784 N.Y.S.2d 607).   The order of disposition therefore should be reversed, the fact-finding order vacated, and the petition dismissed.

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