In re David H.

Nov 24, 1998
Versions:255 A.D.2d 264
680 N.Y.S.2d 244
1998 N.Y. App. Div. LEXIS 12721

—Order, Family Court, Bronx County (Terrence McElrath, J.), entered on or about May 22, 1997, which adjudicated appellant a juvenile delinquent for committing acts which, if committed by an adult, would have constituted the crimes of attempted criminal possession of a weapon in the second and third degrees, and placed him with the Division for Youth for a period of 18 months, unanimously modified, on the law and the facts, by vacating the finding of acts constituting attempted criminal possession of a weapon in the second degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding of acts which would constitute attempted criminal possession of a weapon in the third degree was based on legally sufficient evidence and was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490), including testimony that appellant had a defaced and loaded, but inoperable, handgun hidden on his person and then tried to discard it when he realized he was being followed by the police (see, Matter of Lavar D., 90 NY2d 963, 965; People v Saunders, 85 NY2d 339, 341-342), and the court, as fact-finder, was entitled to discredit appellant’s testimony that, although he knew the weapon was loaded, he believed it to be inoperable (see, Matter of Isaac Q., 217 AD2d 410, 411). However, the presentment agency failed to submit any evidence that appellant intended to use the handgun against another person, and such a finding is against the weight of the evidence, which shows that appellant found the gun only minutes before being confronted by the police and merely planned to take it home. Therefore, that portion of the petition charging acts constituting attempted criminal possession of a weapon in the second degree is dismissed. Since appellant’s placement has expired, there is no need for a remand for further dispositional proceedings. Concur — Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.