In re Joshua S. (49 A.D.3d 469, 2008)

The court’s fact-finding determination was based on legally sufficient evidence and 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 identification and credibility. The testimony of the victim and eyewitness provided ample evidence to support the inference that appellant was a participant in the crimes and not a bystander.

As the presentment agency concedes, the finding as to felony assault (Penal Law § 120.05 [6]) should be vacated because there was no underlying felony other than the assault itself, and the third-degree assault finding should be vacated as a lesser included offense under the remaining second-degree assault count. Concur—Mazzarelli, J.P., Saxe, Buckley and Catterson, JJ.