Matter of Joshua S.
2008 NY Slip Op 02760 [49 AD3d 469]
March 27, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008
Matter of Joshua S.
In the Matter of Joshua S., a Person Alleged to be a Juvenile Delinquent, Appellant.
—[*1] Tamara A. Steckler, The Legal Aid Society, New York City (John A. Newbery of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg of counsel), for presentment agency.
Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about February 2, 2007, 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 attempted gang assault in the first degree, assault in the second degree (two counts), assault in the third degree and menacing in the second and third degrees, and placed him on probation for a period of up to 18 months, unanimously modified, on the law, to the extent of vacating the findings as to assault in the second degree under count 6 and assault in the third degree under count 10 and dismissing those counts of the petition, and otherwise affirmed, without costs.
The court's fact-finding determination was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the court's determinations concerning identification and credibility. The testimony of the victim and eyewitness provided ample evidence to support the inference that appellant was a participant in the crimes and not a bystander.
As the presentment agency concedes, the finding as to felony assault (Penal Law § 120.05 ) should be vacated because there was no underlying felony other than the assault itself, [*2]and the third-degree assault finding should be vacated as a lesser included offense under the remaining second-degree assault count. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.