Michael D., In re

• Decision Date: 12 March 1985
• Citation: 486 N.Y.S.2d 213,109 A.D.2d 633
• Parties: In re MICHAEL D., etc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 213

486 N.Y.S.2d 213

109 A.D.2d 633

In re MICHAEL D., etc., Appellant.

Supreme Court, Appellate Division,

First Department.

March 12, 1985.

W.S. Lauring, Brooklyn, for appellant.

L.A. Sonnenshein, New York City, for respondent.

Before SULLIVAN, J.P., and ASCH, MILONAS and KASSAL, JJ.

MEMORANDUM DECISION.

Order of disposition of the Family Court, Bronx County, entered on November 1, 1983, which adjudicated appellant a juvenile delinquent and placed him on probation for 18 months, is affirmed.

At the fact-finding hearing which was conducted in the instant matter, the complainant, Angel Matos, who assists an apartment building superintendent in caring for the premises, testified as follows: On the evening of February 26, 1983, he was walking down the stairs in the company of the landlord and superintendent when he observed appellant herein and two other boys, identified as Jose and Rubin Torres, drinking and urinating in the hallway. He directed the three youths to leave the building, but they responded with a string of curses and profanity. The complainant then proceeded outside with appellant trailing approximately fifteen feet behind. Once on the street, the complainant was struck on the legs and wrist by Jose Torres, who was wielding a cane. He heard Jose declare, "Hit him with the bottle", and immediately thereafter he was hit on the head with a bottle. Turning his face toward the spot where the bottle had come from, the complainant noticed Rubin and appellant standing together behind him.

Although the evidence against appellant was circumstantial in nature, a rational trier of fact could have found beyond a reasonable doubt that while acting in concert with the Torres brothers, appellant participated in the assault upon the complainant. The complainant identified him as one of the three boys who were drinking and urinating in the hall, who cursed at him when he demanded that they leave and who followed him out of the building, still swearing. Appellant, along with Rubin Torres, stood behind the complainant as Jose struck the latter with a cane. Either he or Rubin hit the complainant on the head with a bottle when Jose cried out, "Hit him with the bottle." Viewing the evidence in the light most favorable to the prosecution, as we are required to do, the proof was sufficient to support the conclusion that appellant committed acts which, if done by an adult, would constitute the crime of assault in the second degree. (See People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364; People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288.) In that connection, it was for the court, as the sole trier of fact, to make a determination concerning the credibility of witnesses and to resolve disputed questions of fact. (People v. Gruttola, 43 N.Y.2d 116, 400 N.Y.S.2d 788, 371 N.E.2d 506). The decision of a trial judge, sitting as the trier of fact, is to be accorded the same weight as that given to a jury verdict. (People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654, 473 N.E.2d 6). Moreover, in the course of evaluating the credibility of the various witnesses before it, a trier of fact is warranted in disregarding statements made by those individuals whom it considers unworthy of belief. There is certainly no indication in the record that by expressing its doubt about the veracity of appellant's account, the court shifted the burden of proof from the prosecution to him.

SULLIVAN, J.P., MILONAS and KASSAL, JJ., concur.

All concur except ASCH, J., who dissents in a memorandum as follows:

Michael D. is hardly Little Lord Fauntleroy, but under our system of law he cannot be found guilty simply because of his deportment or his friends. In my judgment, the evidence of respondent's participation in the assault was insufficient to establish his guilt, mandating that we reverse the Family Court and dismiss the petition. Accordingly, I dissent.

A juvenile delinquency petition was filed against the respondent, Michael D., appellant herein, age 15 at the time, alleging that he and two others intentionally caused physical injury to Angel Matos by means of a cane and a glass bottle.

A fact-finding hearing was held in the Family Court, where Angel Matos testified that he assists the superintendent in cleaning an apartment building. On the date in question, Matos, accompanied by the landlord and superintendent, approached the lobby and saw the respondent Michael D. and two brothers, Jose and Rubin Torres, drinking and urinating in the hallway. Jose Torres was carrying a walking cane. Matos told them to leave the building because he had just finished mopping and sweeping the floor. Michael and the Torres brothers responded with profanity and left the building.

When Matos and the two other men left the building, Jose Torres repeatedly hit Matos with the cane. Matos was struck about the ankles, knees and legs. He was also hit on the wrist as he tried to protect his head. During the attack, Matos saw Michael and Rubin Torres standing together and he heard Jose Torres say, "hit him with the bottle." He was then struck in the head with a bottle and sustained several lacerations to the left side of his face.

Upon arriving at the scene, Police Officer Marquez observed Matos standing on the sidewalk, limping, and bleeding from the face. Matos first identified the Torres brothers as his assailants. As Michael was crossing the street, Matos told Marquez, "he's also one of them," and Michael was then arrested.

Respondent testified in his own behalf. Michael stated that at the...