Matter of Kadeem W.

Matter of Kadeem W. 2006 NY Slip Op 05975 [31 AD3d 777] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

In the Matter of Kadeem W., a Person Alleged to be a Juvenile Delinquent, Appellant.

—[*1]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 (Hunt, J.), dated November 5, 2003, which, upon a fact-finding order of the same court dated October 1, 2003, made after a hearing, finding that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of criminal possession of a weapon in the fourth degree, menacing in the second degree, reckless endangerment in the second degree, and violation of New York City Administrative Code 10-131 (b) (1), sale or possession of air pistols and air rifles, and committed an act which constituted the crime of unlawful possession of weapons by persons under 16, adjudged him to be a juvenile delinquent, placed him on probation for a period of 18 months, and directed him, inter alia, to perform 200 hours of community service. The appeal brings up for review the fact-finding order dated October 1, 2003. By decision and order dated October 18, 2004, this Court reversed the order of disposition dated November 5, 2003, on the law, vacated the fact-finding order, and dismissed the petition (see Matter of Kadeem W., 11 AD3d 626 [2004]). On November 21, 2005, the Court of Appeals reversed the decision and order of this Court and remitted the matter for consideration of the facts and other issues raised but not determined (see Matter of Kadeem W., 5 NY3d 864 [2005]). Presiding Justice Prudenti has been substituted for former Justice Sondra Miller (see 22 NYCRR 670.1 [c]).

Ordered that the order of disposition is modified, on the facts and in the exercise of discretion, by reducing the appellant's term of probation to term of probation already served and reducing the community service requirement to service already completed; as so modified, the order [*2]of disposition is affirmed, without costs or disbursements.

The matter having been remitted to us for further proceedings, upon the exercise of our factual review power, we are satisfied that the findings of fact were not against the weight of the evidence (see Matter of Julissa R., 30 AD3d 526 [2006]; cf. CPL 470.15 [5]; People v Cahill, 2 NY3d 14, 57-58 [2003]). Further, the Family Court properly exercised its discretion in declining to impose an adjournment in contemplation of dismissal (see Matter of Nikita P., 3 AD3d 499, 500-501 [2004]; Matter of Christopher B., 229 AD2d 390 [1996]; Matter of Albert R., 215 AD2d 563, 564 [1995]). However, under the circumstances of this case, we modify the order of disposition by reducing the appellant's term of probation to time already served and reducing the community service requirement to service already completed. Prudenti, P.J., Miller, Krausman and Goldstein, JJ., concur.