        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

349
CAF 12-01163
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF JUSTIN G.,
RESPONDENT-APPELLANT.
---------------------------                       MEMORANDUM AND ORDER
MONROE COUNTY ATTORNEY,
PETITIONER-RESPONDENT.


ARDETH L. HOUDE, ATTORNEY FOR THE CHILD, ROCHESTER, FOR RESPONDENT-
APPELLANT.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (KELLY G. BARTUS OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an amended order of the Family Court, Monroe County
(Joan S. Kohout, J.), entered January 11, 2012 in a proceeding
pursuant to Family Court Act article 3. The amended order adjudged
that respondent committed an act that if committed by an adult would
constitute the crime of gang assault in the second degree.

     It is hereby ORDERED that the amended order so appealed from is
unanimously affirmed without costs.

     Memorandum: Contrary to respondent’s contention, Family Court’s
finding that respondent committed an act that if committed by an adult
would constitute the crime of gang assault in the second degree (Penal
Law § 120.06), as an accomplice (§ 20.00), is supported by legally
sufficient evidence on the issues of identification and serious
physical injury. The victim testified that he was attacked initially
by an individual other than respondent, and other people joined in the
attack. With respect to the issue of identification, an eyewitness
testified that respondent was one of the individuals who encircled the
victim and engaged in the attack on him. With respect to the issue of
serious physical injury, the victim testified that his vision was
impaired as a result of the attack, and the court admitted in evidence
the victim’s certified hospital record, which indicated that the
victim sustained a collapsed lung and fractures of the ribs and left
orbital. We therefore conclude that ample evidence establishes that
respondent was one of the attackers (see People v Chardon, 83 AD3d
954, 956, lv denied 18 NY3d 857), and that the victim sustained a
serious physical injury (see Matter of Timothy S., 1 AD3d 908, 909).
Contrary to respondent’s further contention, the court’s rejection of
his admission of guilt to one of the counts of the petition was not an
abuse of discretion. Respondent failed to admit “the act . . . to
which he [was] entering an admission” (Family Ct Act § 321.3 [1]; see
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                                                         CAF 12-01163

generally Matter of Tiffany MM., 298 AD2d 728, 729).




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
