Opinion
May 31, 2007.
Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about September 29, 2006, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the second and third degrees, criminal possession of a weapon in the fourth degree (two counts), reckless endangerment in the second degree, menacing in the second and third degrees, and unlawful possession of weapons by a person under 16 (two counts), and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings as to criminal possession of a weapon in the fourth degree and menacing in the third degree and dismissing those counts of the petition, and otherwise affirmed, without costs.
Before: Mazzarelli, J.P., Friedman, Marlow, McGuire and Malone, JJ.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Bleakley, 69 NY2d 490). The testimony of the two eyewitnesses, along with the physical evidence, supports the inference ( see generally People v Bierenbaum, 301 AD2d 119, 131-140, lv denied 99 NY2d 626, cert denied 540 US 821) that appellant discharged a loaded firearm, endangering other persons.
As the presentment agency concedes, the court should have dismissed the fourth-degree weapon and third-degree menacing counts as lesser included offenses of third-degree possession of a weapon and second-degree menacing, respectively.