Matter of Denzel F.

Matter of Denzel F. 2007 NY Slip Op 07492 [44 AD3d 389] October 9, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of Denzel F., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1] Steven N. Feinman, White Plains, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about November 21, 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 assault in the third degree and menacing in the third degree, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

Viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 NY2d 792 [1987]), we find it legally sufficient to support the Family Court's finding that appellant committed acts which, if committed by an adult would constitute the crime of third-degree assault. We also conclude that this finding was not against the weight of the evidence. An eyewitness testified that appellant voiced a specific intent to aid another individual, Robert M., in assaulting the complainant. The arresting officer testified that he saw Robert M. approach the victim and hit him in the face. He stated that as he got closer to the scene, he saw three other youths run over to the victim and throw punches at him. When the officer reached them, he saw appellant in front of the complainant, with his hands in the air, ready to punch the victim. Appellant testified that he did, in fact, have physical contact with the victim, but he stated that he was actually trying to break up the fight. This account conflicted with the other witnesses' testimony as to his stated intent and his actions.

Given the factfinder's unique ability to view the witness and hear the testimony, we defer to its findings regarding the resolution of credibility questions (Matter of Chauncey T., 24 AD3d 682 [2005]). Accordingly, we affirm the finding that appellant, acting in concert with Robert M., committed acts constituting the crime of third-degree assault (see Penal Law §§ 20.00, 120.00 [1]).

In addition, there was ample evidence to support the finding that appellant committed acts which, if committed by an adult, would constitute the crime of menacing in the third degree. This required a showing that appellant intentionally placed, or attempted to place the victim in fear of "death, imminent serious physical injury or physical injury" (Penal Law § 120.15). Here, both complainant and the arresting officer testified that they observed appellant in front of the complainant with his fist cocked in front of the complainant's face. While the complainant was [*2]not able to identify appellant at the hearing, the arresting officer confirmed that he was the individual who stood before the victim with his fist cocked back. These acts were sufficient to meet the requirements of Penal Law § 120.15. Concur—Mazzarelli, J.P., Saxe, Friedman, Marlow and Williams, JJ.