Matter of David H.

Matter of David H. 2012 NY Slip Op 07208 Decided on October 25, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2012
Mazzarelli, J.P., Sweeny, Renwick, Richter, Román, JJ.
8391

[*1]In re David H., A Person Alleged to be a Juvenile Delinquent, Appellant.

Presentment Agency


Tamara A. Steckler, The Legal Aid Society, New York (Selene
D'Alessio of counsel), for appellant.
Michael A. Cardozo, Corporation counsel, New York (Marta
Ross of counsel), for presentment agency.

Order of disposition, Family Court, New York County (Mary E. Bednar, J.), entered on or about April 5, 2011, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of menacing in the second degree, and placed him on enhanced supervision probation for a period of 18 months, unanimously 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 Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility and identification. The victim made a prompt and reliable identification of appellant. The evidence established that appellant threatened the victim by displaying what appeared to be a pistol (see Penal Law § 120.14[1]). The inability of the police to recover this object can be readily explained by the fact that appellant had an opportunity to separate himself from it.

The court's dismissal of the weapon possession count does not undermine the sufficiency and weight of the evidence supporting the finding as to menacing. On the contrary, the mixed [*2]finding was logical and consistent with the evidence. The weapon charge required proof that the apparent firearm displayed by appellant was actually a weapon, as set forth in Penal Law § 265.01(2).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK