Opinion
618
March 27, 2003.
Order of disposition, Family Court, New York County (Mary Bednar, J.), entered on or about March 7, 2002, 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 assault in the second degree, criminal possession of a weapon in the third degree, reckless endangerment in the second degree and unlawful possession of a weapon by a person under sixteen, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously affirmed, without costs.
Raymond E. Rogers, for appellant.
Deborah Weiss, for the Presentment Agency.
Before: Buckley, P.J., Nardelli, Andrias, Ellerin, Friedman, JJ.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. The element of recklessness required under the assault and reckless endangerment counts was established beyond a reasonable doubt. The evidence warranted the conclusion that, when appellant removed the magazine from a pistol, pointed the pistol in the complaining witness's general direction and squeezed the trigger, causing a chambered round to strike the complaining witness, appellant consciously disregarded the substantial and unjustifiable risk that, due to his inexperience with firearms, he might be mistaken as to whether the pistol was still capable of firing (see People v. Reynoso, 231 A.D.2d 454, lv denied 89 N.Y.2d 928; People v. Johnson, 205 A.D.2d 707, lv denied 84 N.Y.2d 868). A finding of recklessness is not necessarily precluded by evidence that a person engaged in dangerous activity took precautions to avoid an accident; such a finding may be predicated, where appropriate, on the actor's disregard of a substantial and unjustifiable risk that such precautions might be inadequate to prevent harm (see e.g. People v. Narimanbekov, 258 A.D.2d 417; People v. Gil, 251 A.D.2d 121, 123, lv denied 92 N.Y.2d 981).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.