Matter of Daniel R.
2008 NY Slip Op 01840 [49 AD3d 266]
March 4, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008

In the Matter of Daniel R., a Person Alleged to be a Juvenile Delinquent, Appellant.

[*1] Randall S. Carmel, Syosset, for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Suzanne K. Colt of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about June 13, 2007, 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 third degree and menacing in the third degree, and placed him with the Office of Children and Family Services for a period of 12 months, unanimously affirmed, without costs.

Appellant's challenge to the facial sufficiency of the menacing count of the petition is without merit. The petition and its supporting deposition contained specific allegations supporting the element of intent to place the victim in fear of physical injury (see Penal Law § 120.15), namely, that appellant threatened to injure the victim, struck him, and threatened to cause further injury.

To the extent that appellant is challenging the legal sufficiency of the evidence presented at the fact-finding hearing, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also conclude that the court's finding was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's determinations concerning credibility. The evidence established that appellant punched the victim in the face, causing bleeding. Evidence that appellant continued to make threats to hurt the victim after he had [*2]already punched him twice and had to be restrained, and that the victim was frightened by these threats, was sufficient to establish the elements of menacing (see Matter of Troy F., 40 AD3d 352 [2007]). Concur—Andrias, J.P., Friedman, Buckley, McGuire and Moskowitz, JJ.