In re Kysean D. S. , 728 N.Y.S.2d 323 ( 2001 )

—Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Respondent appeals from an order of disposition adjudicating him a juvenile delinquent and placing him under the supervision of the Erie County Department of Probation for 12 months. We agree with respondent that petitioner failed to present legally sufficient evidence that respondent committed an act that if committed by an adult would constitute the crime of reckless endangerment in the second degree (Penal Law § 120.20). A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct that creates a substantial risk of serious physical injury to another person. The determination whether reckless endangerment has been proven by legally sufficient evidence requires “an objective assessment of the degree of risk presented by [respondent’s] reckless conduct” (People v Register, 60 NY2d 270, 277, cert denied 466 US 953; see, People v Davis, 72 NY2d 32, 36). The conduct must actually create a substantial risk of serious physical injury; respondent’s “subjective intent is irrelevant” (People v Davis, supra, at 36). Here, respondent lit a match, set the corner of a piece of paper on fire, and then dropped the piece of paper on the floor and stamped out the fire. The auditorium in which he was located had no carpeting, and no other students were in proximity to him. Although the seats in the auditorium were described as being made of wood, there was no proof that the seats could be set on fire by a single piece of burning paper. Because no risk of injury to any other person was actually created by the conduct of respondent, his conduct does not constitute reckless endangerment in the second degree. Consequently, the order must be reversed and the petition dismissed. (Appeal from Order of Erie County Family Court, Mix, J.— Juvenile Delinquency.) Present — Pigott, Jr., P. J., Green, Pine, Scudder and Burns, JJ.