In re Carlos V.

Appeal from an order of the Family Court, Kings County, dated May 23, 1975, which, upon a determination after a fact-finding hearing that appellant had committed acts which, if done by an adult, would have constituted a crime, adjudged him to be a juvenile delinquent and placed him on probation for a period of six months. Order reversed, on the facts, without costs or disbursements, and petition dismissed. In our opinion, the court did not improvidently exercise its discretion in taking sworn testimony from the infant witness (see Wheeler v United States, 159 US 523, 524-525). However, it is our view that the evidence failed to prove beyond a reasonable doubt that appellant had committed acts which, if done by an adult, would have constituted the crime of menacing, as that crime is defined in section 120.15 of the Penal Law. Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.