Opinion
October 27, 1997
Appeal from Family Court, Queens County (Berman, J.)
Ordered that the order of disposition is modified, as a matter of discretion in the interest of justice, 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 crimes of robbery in the third degree and petit larceny and substituting therefor a provision dismissing those counts of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
The appellant contends that the petition was insufficient and that the presentment agency failed to prove that he was guilty of robbery in the second degree. However, the complainant's deposition accompanying the petition sufficiently alleged, and the trial evidence, viewed in the light most favorable to the presentment agency ( cf., People v. Contes, 60 N.Y.2d 620), demonstrated that the appellant and five others pushed and threatened to stab the complainant cashier at a candy store, that they stuffed their pockets with items from the shelves, and left the store with the items without paying for them ( see, Family Ct Act 311.2; Penal Law 160.10). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The appellant's contention that the showup procedure was improper is without merit. Considering the complainant's identification of the appellant not more than an hour after the incident and within one and one-half blocks from the crime scene, the showup procedure was within acceptable boundaries ( see, People v. Brian D., 237 A.D.2d 355; People v. Thompson, 215 A.D.2d 604).
However, the counts of robbery in the third degree and petit larceny are lesser-included offenses of the greater count of robbery in the second degree, and are dismissed ( see, Matter of Tonia B., 239 A.D.2d 572; matter of Shaneeka M., 238 A.D.2d 594; Matter of Charmaine J., 236 A.D.2d 474; matter of Jamal M., 187 A.D.2d 654).
The appellant's remaining contentions are either unpreserved for appellate review or without merit.
Rosenblatt, J.P., Ritter, Krausman and Florio, JJ., concur.