Summary
reversing conviction where victim did not have a "well-founded" fear of imminent physical injury
Summary of this case from Holley v. County of Orange, New YorkOpinion
February 25, 1991
Appeal from the Family Court, Kings County (Deutsch, J.).
Ordered that the order of disposition is reversed, on the law and the facts, without costs or disbursements, the fact-finding order is vacated, and the proceeding is dismissed.
We agree with the appellant's contention that the evidence adduced at the fact-finding hearing did not prove beyond a reasonable doubt his guilt of committing an act which, if committed by an adult, would have constituted the crime of menacing. The crime of menacing requires that a person, by physical menace, intentionally place or attempt to place another person in fear of imminent serious physical injury (see, Penal Law § 120.15). The presentment agency's evidence indicated that on September 28, 1988, the appellant was part of a group of boys who surrounded the complainant, Michael B. The group pushed and shoved Michael, and one person punched him on the left jaw. However, the group of boys were not armed, and Michael testified that the appellant neither punched nor kicked him. In addition, a school security officer observed the boys from across the street. He immediately ran toward the group, causing them to disperse, and he further estimated the duration of the entire incident to have been about one minute. Subsequently, Michael did not request or need medical attention. Under these circumstances, we find that the evidence was legally and factually insufficient to establish the crime of menacing because it did not establish that the complainant had a well-founded fear of serious physical injury (cf., People v Baum, 143 A.D.2d 1024; Matter of Ramon M., 109 A.D.2d 882; People v Jackson, 109 Misc.2d 582). Bracken, J.P., Kooper, Lawrence, Balletta and O'Brien, JJ., concur.