Opinion
1740
October 7, 2003.
Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about April 9, 2002, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that appellant committed acts which, if committed by an adult, would constitute the crimes of attempted robbery in the first degree, criminal possession of a weapon in the fourth degree, menacing in the second degree, unlawful imprisonment in the second degree, attempted assault in the third degree, and unlawful possession of weapons by persons under the age of 16, and placed him on probation for 18 months, unanimously modified, on the law, to the extent of vacating the finding as to attempted assault in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.
Marcia Egger, for Agzim S.
Julie Steiner, for Presentment Agency.
Before: Saxe, J.P., Sullivan, Williams, Lerner, Friedman, JJ.
Except as indicated, the court's finding was based on legally sufficient evidence and was not against the weight of the evidence. The evidence warranted the conclusion that appellant repeatedly poked the victim in the leg with a pocket knife in an effort to take the victim's bicycle, although the victim's friend prevented the theft from being accomplished ( see People v. Acosta, 80 N.Y.2d 665, 670; People v. Bracey, 41 N.Y.2d 296, 300).
As the presentment agency commendably concedes, the count of attempted assault in the third degree should be dismissed because there was insufficient evidence that appellant came dangerously close to causing physical injury.
We have considered and rejected appellant's remaining claims.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.