In re Justin M.

152 A.D.3d 602

59 N.Y.S.3d 64

In the Matter of JUSTIN M. (Anonymous), appellant.

2016-00847, 2016-00848, Docket No. D-013-15.

Supreme Court, Appellate Division, Second Department, New York.

July 12, 2017.

Joel Borenstein, Brooklyn, NY, for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Claude S. Platton and Deborah A. Brenner of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.

Appeals by Justin M. from (1) an order of fact-finding of the Family Court, Kings County (Jacqueline D. Williams, J.), dated November 19, 2015, and (2) an order of disposition of that court dated December 18, 2015. The order of fact-finding, after a hearing, determined that Justin M. had committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, criminal possession of stolen property in the fifth degree, and attempted assault in the third degree. The order of disposition adjudicated him a juvenile delinquent and placed him on probation for a period of 20 ½ months.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as that order was superseded by the order of disposition, and is brought up for review on the appeal from the order of disposition; and it is further,

ORDERED that the order of disposition is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof which adjudicated the appellant a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, and attempted assault in the third degree, and substituting therefor a provision dismissing those counts of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the order of fact-finding is modified accordingly.

The appellant was adjudicated a juvenile delinquent on the basis of the Family Court's findings that he committed acts which, if committed by an adult, would have constituted the crimes of robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, criminal possession of stolen property in the fifth degree, and attempted assault in the third degree. The findings with respect to all of the crimes except for criminal possession of stolen property in the fifth degree depended upon a finding of accessorial liability. The appellant contends, among other things, that the finding of accessorial liability was against the weight of the evidence.

In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record, independently assess all of the proof, substitute our own credibility determinations for those made by the Family Court in an appropriate case, determine whether the Family Court's determination was factually correct, and acquit the appellant if we are not convinced that the Family Court's adjudication of the appellant as a juvenile delinquent was proven beyond a reasonable doubt (see Matter of Trevor S., 141 A.D.3d 666, 667, 35 N.Y.S.3d 697 ; Matter of Shannel P., 137 A.D.3d 1039, 1041, 27 N.Y.S.3d 195 ; Matter of Danielle B., 94 A.D.3d 757, 758, 941 N.Y.S.2d 685 ; cf. CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ).

A determination premised upon accessorial liability requires proof beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the act charged and that, in furtherance thereof, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit such act (see Penal Law § 20.00 ; Family Ct. Act § 342.2[2] ; Matter of Leonel T., 78 A.D.3d 1188, 1189, 912 N.Y.S.2d 280 ; Matter of

Derrick McM.,

23 A.D.3d 474, 475, 808 N.Y.S.2d 106 ; Matter of...