Matter of Wanji W.

• Decision Date: 27 May 2003
• Citation: 305 A.D.2d 690,761 N.Y.S.2d 661
• Parties: In the Matter of WANJI W., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 690

761 N.Y.S.2d 661

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

Decided May 27, 2003.

Feuerstein, J.P., S. Miller, McGinity and Crane, JJ., concur.

Ordered that the appeal from the fact-finding order is dismissed, without costs or disbursements, as that order was superseded by the order of disposition; and it is further,

Ordered that the appeal from so much of the order of disposition as placed the appellant in the custody of the New York State Office of Children and Family Services for a period of 18 months is dismissed as academic, without costs or disbursements, as the period of placement has expired (see Matter of Tanisha B., 296 AD2d 494 [2002]); and it is further,

Ordered that the order of disposition is modified, on the law and as a matter of discretion, by vacating the provisions thereof adjudicating the appellant a juvenile delinquent based upon the findings that he committed acts which, if committed by an adult, would have constituted the crimes of menacing in the third degree and unlawful imprisonment in the second degree, and substituting therefor provisions dismissing those counts of the petition; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, the fact-finding order is modified accordingly, and the Office of Children and Family Services shall immediately release the appellant from its custody.

The appellant failed to preserve his contention regarding the legal sufficiency of the evidence of grand larceny in the fourth degree for appellate review (cf. CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245, 250 [1989]). In any event, the contention is without merit. Viewing the evidence in the light most favorable to the presentment agency (cf. People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the appellant committed acts which, if committed by an adult, would have constituted robbery in the second degree and grand larceny in the fourth degree (cf. Penal Law § 160.10 [1]; 155.30 [5]). Moreover, upon the exercise of our factual review power, we are satisfied that the findings of fact were not against the weight of the evidence (cf. CPL 470.15 [5]).

The appellant failed to preserve his contention regarding the legal sufficiency of the evidence of menacing in the third degree for appellate review (cf. CPL 470.05 [2]). We reach the issue in the exercise of our discretion and find that the evidence was legally insufficient to establish that the appellant committed acts which, if committed by an adult, would have constituted the crime of menacing in the third degree beyond a reasonable doubt because it did not establish that the complainant had a well-founded fear of serious physical injury (cf. Matter of Steven W., 294 AD2d 370, 371 [2002]; Matter of Michael H., 294 AD2d 364, 365 [2002]; Matter of Akida L., 170 AD2d 680, 681 [1991]). Thus, the finding of menacing in the third degree must be vacated and that count of the petition dismissed.

The appellant failed to preserve his contention that the count of unlawful imprisonment in the second degree merged with the count of robbery in the second degree (cf. CPL 470.05 [2]; People v Guillot, 205 AD2d 705, 706 [1994]; People v Sage, 204...