NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 8, 2009
IN RE LOVENIA V., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT, APPELLANT.
Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about September 8, 2008, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that she committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees and menacing in the second degree, and placed her on probation for a period of 12 months, unanimously modified, on the law, to the extent of vacating the finding as to attempted assault in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Nardelli, Renwick, Freedman, Roman, JJ.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. Appellant's conduct in chest-butting her teacher, swinging at him hard enough to cause a scratch, and then continuing to kick and lash out for several minutes supported an inference that she intended to cause physical injury (see e.g. Matter of Jose B., 47 AD3d 461 ), especially since relatively minor injuries causing moderate, but "more than slight or trivial pain" may constitute physical injury (People v Chiddick, 8 NY3d 445, 447 ; see also People v Guidice, 83 NY2d 630, 636 ). The evidence also supported the finding as to second-degree menacing, in that appellant placed the victim in reasonable fear of physical injury (see Matter of Tjay T., 34 AD3d 1060, 1061 ) by threatening him with an umbrella, which, under the circumstances, was a dangerous instrument (see People v Dones, 279 AD2d 366 , lv denied 96 NY2d 799 ).
The charge of attempted third-degree assault should have been dismissed as a lesser included offense of attempted second-degree assault.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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