MATTER OF MARK PP.

• Decision Date: 01 March 2001
• Citation: 281 A.D.2d 689,721 N.Y.S.2d 156
• Parties: In the Matter of MARK PP., a Juvenile Delinquent, Respondent.<BR>DELAWARE COUNTY ATTORNEY, Appellant.
• Court: New York Supreme Court — Appellate Division

281 A.D.2d 689

721 N.Y.S.2d 156

In the Matter of MARK PP., a Juvenile Delinquent, Respondent.

DELAWARE COUNTY ATTORNEY, Appellant.

Carpinello, J.

Decided March 1, 2001.

Crew III, J. P., Mugglin, Rose and Lahtinen, JJ., concur.

Carpinello, J.

In June 1999, respondent was adjudicated a juvenile delinquent and placed on probation for one year, which included a condition that he not engage in "any illegal or inappropriate behavior." He was thereafter charged with violating this condition by breaking an elementary school window. Specifically, petitioner alleged that respondent committed an act which if committed by an adult would constitute the crime of criminal mischief in the fourth degree under Penal Law § 145.00 (3). At the probation violation hearing, two boys testified who were with respondent when he broke the window. According to these witnesses, respondent attempted to throw a rock on the roof of the school when it slipped and instead hit the window. Both unequivocally testified that respondent intended only to aim the rock at the roof and that others had done this very act on numerous occasions without incident. After pointing out that criminal mischief was the only "count" of the violation petition, Family Court dismissed it on the ground that the element of recklessness was not proven. Petitioner appeals.

Petitioner argues that Family Court erred in determining that "respondent's conduct was reasonable," a contention that is a mischaracterization of Family Court's decision. Family Court did not make a finding that respondent's conduct was reasonable; rather, it determined, upon the evidence before it at the hearing, that petitioner did not meet its burden of proving that respondent engaged in reckless conduct under Penal Law § 145.00 (3) and § 15.05 (3). Thus, contrary to petitioner's contention, the issue on appeal is not whether respondent's conduct in throwing a rock was "reasonable" or even wrongful. The issue is whether respondent's conduct was proven by petitioner to be criminal and thus a violation of that aspect of his probation prohibiting him from engaging in illegal behavior. Said differently, while petitioner certainly could have charged that respondent engaged in "inappropriate behavior" while on probation by throwing a rock toward the roof of a building, accidently breaking a window and then failing to take responsibility for his actions, petitioner only charged him with violating probation by engaging in an act of criminal mischief. Limited, as we are, to reviewing whether petitioner established by a preponderance of the evidence this precise charge, we are constrained to affirm.

To be guilty of Penal Law § 145.00 (3) it must be established that one acted in a reckless fashion, thereby causing damage to the property of another in an amount exceeding $250 (see generally, People v Lumpkin, 173 AD2d 738). A person acts recklessly when he or she "is aware of and...