In re Oscar H.

175 A.D.2d 788 | N.Y. App. Div. | 1991

— Order of the Family Court, Bronx County (Rhoda Cohen, J.), entered January 16, 1990, adjudicating petitioner a juvenile delinquent upon a finding that petitioner committed acts which, if committed by an adult, would constitute the crimes of assault in the first degree, criminal possession of a weapon in the second, third and fourth degrees and menacing, and which placed him on probation for a period of two years, unanimously affirmed, without costs.

Family Court found that defendant, acting in concert with three of his friends (all of whom are Hispanic) set out to find three other youths (all of whom are black). Defendant and his companions were armed with a .45 caliber semi-automatic handgun, carried by defendant, and a sawed-off .22 caliber rifle (13 inches in overall length with a 3-inch barrel), carried by one of his friends. In the course of the ensuing confrontation, defendant pointed the .45 caliber handgun at David, one of the black youths, who struggled with him for control of the weapon. Defendant thereupon instructed his armed accomplice to shoot David, and the former complied, seriously wounding David in the leg. No evidence was introduced that any of the black youths was armed. The .45 caliber weapon carried by defendant was not recovered by police. On appeal, defendant argues that failure to allege and prove operability of the weapon requires reversal of the fourth degree weapons possession conviction.

Irrespective of the condition of the handgun, it is clear that the .22 caliber sawed-off rifle was fully operable. Defendant’s conviction is supported by his constructive possession of this firearm, based on the court’s finding that he acted in concert with his three friends and "was well aware that there was a loaded sawed-off .22 caliber rifle that was being carried around”.

Defendant’s argument that his actions were justified is raised for the first time upon this appeal and is entirely without substance. It need only be observed that defendant and his companions armed themselves with two weapons, initiated the confrontation with the three unarmed youths and failed to avail themselves of the opportunity to withdraw and avoid violence.

Defendant’s remaining contentions have been examined and found to be without merit. Concur — Milonas, J. P., Ellerin, Ross and Rubin, JJ.