Opinion
Argued November 19, 1992
Decided December 17, 1992
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Judith Sheindlin, J., Michael Gage, J.
Raymond E. Rogers, New York City, and Lenore Gittis, for appellant.
O. Peter Sherwood, Corporation Counsel of New York City, New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Respondent was charged with committing acts which, if committed by an adult, would constitute the crimes of second degree robbery (Penal Law § 160.10), second degree assault (Penal Law § 120.05, [6]) and third degree assault (Penal Law § 120.00). The charges arose out of an incident in which respondent and three others accosted a man and woman on a subway platform, abused them verbally and then attacked the man, beating him while one of their number held him down. During the attack one of the assailants used a chain to beat the victim and two held him down while another took his wallet from his pocket. On the basis of the evidence, including the testimony of the victim and an eyewitness, the Family Court adjudicated respondent a juvenile delinquent and placed him in the custody of the New York State Division for Youth.
Contrary to respondent's contentions on this appeal from the Appellate Division order affirming the Family Court's dispositional order, these circumstances, coupled with the evidence that respondent and his companions fled within moments after the wallet was taken, provided a sufficient basis for the hearing court to find that respondent was not only aware of the robbery, but acted with the intention of aiding in its commission. Unlike the facts in People v De Jesus ( 123 A.D.2d 563), on which respondent relies, there was nothing surreptitious or hidden here about the theft of the victim's wallet, which was removed from the victim's pocket openly and in plain sight of an eyewitness standing several feet away. Similarly, regardless of whether respondent was initially aware that one of his companions was armed with a chain, his continued participation in the beating, which involved the repeated use of a chain by one of the assailants over an extended period, was sufficient to support the conclusion that he intentionally aided in an assault with a dangerous instrument (see, Penal Law § 120.05; see also, People v Allah, 71 N.Y.2d 830, 832).
Acting Chief Judge SIMONS and Judges KAYE, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur.
Order affirmed, without costs, in a memorandum.