In re Brittanie G.

Apr 30, 2004
Versions:6 A.D.3d 1213
775 N.Y.S.2d 702
2004 N.Y. App. Div. LEXIS 6259

Appeal from an amended order of the Family Court, Monroe County (Alex R. Renzi, J.), entered September 26, 2003. The amended order adjudged that respondent is a juvenile delinquent and placed respondent in the custody of the New York State Office of Children and Family Services for a period of 12 months.

It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Family Court’s finding that respondent committed an act that, if committed by an adult, would constitute attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [10] [a]) is based on legally sufficient evidence. The evidence establishes that respondent struck a school administrator on the head with a telephone receiver. “Respondent’s intent to cause physical injury can be inferred from the conduct and surrounding circumstances” (Matter of Margaret A.W., 1 AD3d 881 [2003]; see Matter of Anthony S., 305 AD2d 689, 690 [2003]). The court further found that respondent committed an act that, if committed by an adult, would constitute criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). Respondent’s contention regarding the legal sufficiency of the evidence with respect to that finding is not preserved for our review (see Matter of Yarras F., 5 AD3d 481 [2004]; Anthony S., 305 AD2d at 689-690; see generally People v Gray; 86 NY2d 10, 19 [1995]). In any event, viewing the evidence in the light most favorable to the presentment agency, we conclude that the evidence is legally sufficient to establish that the telephone receiver was a dangerous instrument (see People v Carter, 53 NY2d 113, 116-117 [1981]; People v Becker, 298 AD2d 986 [2002], lv denied 99 NY2d 555 [2002]; People v McKoy, 258 AD2d 950 [1999], lv denied 93 NY2d 876 [1999]; Matter of Jason J., 187 AD2d 652, 653 [1992], lv denied 81 NY2d 706 [1993]), and that respondent intended to use it unlawfully (see Margaret A.W., 1 AD3d 881; Anthony S., 305 AD2d at 690). We further conclude that the court’s findings are not against the weight of the evidence. Present—Green, J.P., Pine, Kehoe, Gorski and Hayes, JJ.