29 A.D.3d 316
N.Y. App. Div.
2006

In the Matter of COURTNEY S., a Person Alleged to be a Juvenile Delinquent, Appellant.

Appellate Division of the Supreme Court of New York, First Department

816 NYS2d 347

Order of disposition, Family Court, Bronx County (Alma F. Cordova, J.), entered on or about June 16, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination entered May 9, 2005, that he committed acts which, if committed by an adult, would constitute the crimes of attempted gang assault in the first degree, attempted assault in the second degree, assault in the third degree, attempted assault in the third degree and menacing in the third degree, unanimously modified, on the law, to the extent of vacating the finding as to attempted gang assault in the first degree and dismissing that count of the petition, and reducing the finding as to attempted assault in the second degree to attempted assault in the third degree, and otherwise affirmed, without costs.

Except as indicated, the court‘s finding was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court‘s determinations concerning credibility (see People v Gaimari, 176 NY 84, 94 [1903]). However, while the credible evidence warranted the conclusion that appellant intended to cause physical injury, there was insufficient evidence from which the factfinder could infer that he intended to cause serious physical injury, or that he came dangerously close to causing such injury (see Matter of Damien C., 5 AD3d 281 [2004]). The evidence established the essential elements of the remaining charges.

Even with this modification, we conclude that placing appellant on probation for 12 months is the least restrictive alternative consistent with his needs and the need for protection of the community (see Matter of Katherine W., 62 NY2d 947 [1984]).

Concur—Tom, J.P., Mazzarelli, Friedman, Marlow and Malone, JJ.