Decided on September 25, 2012
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.
Andrias, J.P., Sweeny, Moskowitz, Freedman, Richter, JJ.
Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about January 19, 2012, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed an act that, if committed by an adult, would constitute the crime of assault in the third degree, and placed him on probation for a period of 18 months, unanimously modified, on the law, to the extent of reducing the finding to attempted assault in the third degree, and otherwise affirmed, without costs.
Except as indicated, the court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 ). There is no basis for disturbing the court's credibility determinations, including its resolution of inconsistencies in testimony.
The evidence supports the inference that appellant was one of two persons who took part in an attack on the victim, and that appellant intended to cause physical injury. However, the evidence does not establish that the victim sustained any impairment of his physical condition or substantial pain (see Penal Law § 10.00; People v Chiddick, 8 NY3d 445, 447 ). Thus, the evidence supports a finding of attempted, but not completed, third-degree assault.
To the extent appellant is arguing that the court's brief questioning of the victim deprived appellant of a fair fact-finding hearing, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 25, 2012
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