Opinion
November 26, 1996.
Order of disposition, Family Court, New York County (George Jurow, J.), entered November 22, 1995, which adjudicated respondent a juvenile delinquent upon a finding that he committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees and menacing in the second and third degrees, and placed him on probation for a period of 15 months, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating the conviction for menacing in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.
Before: Murphy, P.J., Ross, Tom, Mazzarelli and Andrias, JJ.
Respondent's guilt was established by the complainant's testimony, properly credited by Family Count, that respondent hit him twice in the face with his fist and three times in the neck and back with a metal pipe, while he was surrounded by several individuals, one of whom also hit him, which actions demonstrated respondent's intent to cause reasonable fear of injury. Absent argument from the presentment agency as to whether the third-degree menacing count should be dismissed as a lesser included offense of the second-degree menacing count, we dismiss the third-degree menacing count as a matter of discretion ( see, CPL 300.40 [a]; cf., People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780).