In re Cablique P.

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about August 23, 2005, 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 petit larceny and criminal possession of stolen property in the fifth degree, and imposed a conditional discharge for a period of up to 12 months, reversed, on the law, without costs, and the petition dismissed. On or about February 5, 2005, appellant threw a paper clip at the complainant’s friend while they were riding on a bus, and the two exchanged words. Two days later, the complainant and his friend were on a bus when a group of five boys, including appellant, engaged in a verbal altercation with the complainant’s friend. One of the boys in the group told the complainant’s friend to “get off the bus or else.” The friend got off the bus, followed by the complainant and the group of boys. While one of the boys and appellant were speaking to the complainant’s friend, another boy unexpectedly hit the complainant’s friend on the side of his face with brass knuckles. Those two started to fight, and appellant and the remaining three boys joined them. [368] The complainant also joined in, but at no point did he and appellant fight each other. During the struggle, the complainant partiálly removed his jacket to enable him to fight more effectively. The same boy who struck the complainant’s friend then struck the complainant with brass knuckles and pulled the complainant’s jacket off the rest of the way. The complainant and his jacket both fell to the ground. The complainant’s friend pulled him up from the ground, and the two walked to the bus stop and boarded a bus. From the vehicle’s window, they each saw appellant pick up the jacket and immediately hand it to another member of the group. As a result of this incident, the presentment agency initiated a juvenile delinquency proceeding alleging that appellant engaged in acts which, if committed by an adult, would constitute the crimes of attempted robbery in the first degree, robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, attempted assault in the second degree (two counts), criminal possession of a weapon in the fourth degree (two counts), criminal possession of stolen property in the fifth degree, petit larceny, menacing in the second degree, attempted assault in the third degree, and menacing in the third degree. After a fact-finding hearing at which only the complainant and his friend testified, the court dismissed all the charges except criminal possession of stolen property in the fifth degree and petit larceny, based on appellant’s act of picking up the jacket from the ground and handing it to another. We reverse. While a responsible person might suspect that appellant intended to exercise dominion and control over the jacket, suspicion is not a sufficient basis to affirm a fact finding. Appellant’s challenge to the legal sufficiency of the evidence requires us to view the evidence in a light most favorable to the presentment agency, giving it the benefit of every favorable inference, to determine whether any rational trier of fact could have found that every element of the charged crime was established beyond a reasonable doubt (see Matter of Ivan F., 233 AD2d 210 [1996]; cf. People v Contes, 60 NY2d 620, 621 [1983]). Having reviewed the evidence, we find that the presentment agency did not sustain its burden of proving each element of the remaining two charges. The sole evidence adduced at the fact-finding hearing regarding these two charges is that after the altercation ended and after the complainant and his friend left the scene and had boarded a nearby bus, appellant picked up a jacket from the [369] ground, handing it to another boy. Specifically, the complainant testified, “going toward the back [of the bus] is when I had seen [appellant] pick up the jacket and give it to one of his friends,” and his friend testified, “We took the bus, we went inside and we sat in the back. ... I saw [appellant] pick up the jacket and give it to one of his friends.” Without more, this evidence is insufficient to find that the presentment agency established each and every element of petit larceny (see Penal Law § 155.25) or criminal possession of stolen property in the fifth degree (Penal Law § 165.40) beyond a reasonable doubt. Notably, the court dismissed the charges of attempted robbery in the first degree, robbery in the second degree, robbery in the third degree, and grand larceny in the fourth degree at the fact-finding hearing’s conclusion. As for the petit larceny charge, the record contains no evidence to support a finding of larcenous intent beyond a reasonable doubt. Throughout the incident, appellant’s actions were directed solely at the complainant’s friend. No evidence even suggests that appellant’s purpose during the confrontation was to steal complainant’s jacket. While we agree with the dissent that “[a]ppellant’s intent must be determined as of the moment of the taking of the property,” it cannot be denied that events before and after the act of taking are relevant to the taker’s intent. The record suggests that this incident was a continuation of an incident on the bus two days earlier between the complainant’s friend and appellant. Indeed, even after the complainant became involved in the brawl, there was no exchange or interaction between appellant and him. Moreover, there is absolutely no evidence in the record from which to conclude, at the precise moment of the taking, based on appellant’s simple act of lifting the jacket from the ground and immediately handing it to another, that he intended to deprive the complainant of his jacket and appropriate it for himself or another (see Penal Law § 155.00 [3], [4]). Similarly, with respect to criminal possession of stolen property in the fifth degree, the record is devoid of any evidence which would establish beyond a reasonable doubt that appellant knowingly possessed stolen property and that he intended to benefit himself or another with the property or impede its recovery by the owner (see Penal Law § 165.40). The presentment agency was required to establish beyond a reasonable doubt that appellant knew the jacket “was stolen by someone” (People v McFarland, 181 AD2d 1007 [1992], lv denied 79 NY2d 1051 [1992], quoting People v Corsetti, 10 AD2d 685 [1960]). The presentment agency failed to meet this burden. While con [370] ceivably a rational trier of fact could have inferred that during the altercation appellant was aware of the jacket’s ownership, it is nonetheless clear that the evidence was insufficient to conclude that in momentarily possessing the jacket in these circumstances, appellant had the requisite mens rea for petit larceny or criminal possession of stolen property. To hold otherwise would be sheer speculation. In our opinion, the dissent’s reference to the alleged level of violence with brass knuckles against the complainant’s friend is not only irrelevant, but it was presumably rejected by Family Court when it dismissed all the assault charges against appellant. As for the dissent’s following two statements: (1) “it seems particularly unlikely that, as the majority speculates, the complainant would abandon a leather jacket in the dead of winter,” and (2) “[t]he majority’s speculation that appellant may not have known . . . whether [the jacket] was abandoned is unrealistic and contrary to the evidence [presented],” we respectfully suggest that the dissent vanquishes a strawman, for we do not state or imply that the jacket was abandoned. Finally, were we not concluding that court’s fact-finding determination was based on legally insufficient evidence, we would conclude that against it was the weight of the evidence. Concur—Andrias, Marlow, Nardelli and McGuire, JJ.