Opinion
March 9, 1998
Appeal from the Family Court, Orange County (Kiedaisch, J.).
Ordered that the order of disposition is modified, on the law, by deleting the provision thereof which adjudicated the appellant a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crime of criminal trespass in the second degree, and substituting therefor a provision dismissing that count of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
Viewing the evidence in the light most favorable to the presentment agency and according it the benefit of every reasonable inference ( cf., People v. Malizia, 62 N.Y.2d 765, cert. denied 469 U.S. 932; see, Matter of William A., 219 A.D.2d 494), we find that it was legally sufficient to establish the appellant's guilt beyond a reasonable doubt. The credible evidence established that the appellant knowingly and unlawfully entered the complainant's apartment with intent to commit a crime therein. Moreover, upon the exercise of our factual review power, we are satisfied that the Family Court's fact-finding decision was not against the weight of the evidence ( cf., CPL 470.15; People v. Bleakley, 69 N.Y.2d 490, 495).
Nonetheless, criminal trespass in the second degree is a lesser-included offense of burglary in the second degree in this case ( cf., People v. Coppola, 154 A.D.2d 546). Accordingly, upon a finding of guilt as to the greater count (burglary in the second degree), the lesser count (criminal trespass in the second degree) should have been dismissed. Under the facts of this case, the dismissal of the lesser included offense does not warrant changing the disposition ( cf., CPL 300.40 [b]; see, Matter of Tonia B., 239 A.D.2d 572; Matter of Jamal M., 187 A.D.2d 664, 655).
Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.