Matter of Carlos M.

Matter of Carlos M. 2007 NY Slip Op 04563 [40 AD3d 537] May 31, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

In the Matter of Carlos M., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1] 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 NY2d 490 [1987]). The testimony of the two eyewitnesses, along with the physical evidence, supports the inference (see generally People v Bierenbaum, 301 AD2d 119, 131-140 [2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]) that appellant discharged a loaded firearm, endangering other persons.

As the presentment agency concedes, the court should have dismissed the fourth-degree [*2]weapon and third-degree menacing counts as lesser included offenses of third-degree possession of a weapon and second-degree menacing, respectively. Concur—Mazzarelli, J.P., Friedman, Marlow, McGuire and Malone, JJ.