Summary
holding that "the shoe, sneaker, or boot with which the appellant kicked the complainant, under the circumstances, constituted a dangerous instrument"
Summary of this case from Larweth v. ConwayOpinion
November 23, 1992
Appeal from the Family Court, Kings County (Hepner, J.).
Ordered that the order of disposition is affirmed, without costs or disbursements.
Contrary to the appellant's contention, the juvenile delinquency petition, along with its supporting deposition, was legally sufficient (see, Family Ct Act § 311.2). While it is true that the petition incorrectly alleged that the appellant had committed assault in the second degree by means of a "deadly weapon, to wit a boxcutter razor", a juvenile delinquency petition need not set forth facts which are evidentiary in nature (see, Family Ct Act § 311.1 [h]). Moreover, the petition substantially conformed to the requirements prescribed in Family Court Act § 311.1, despite the agency's failure to designate the assault as having been committed by means of a "dangerous instrument" (Family Ct Act § 311.2). In any event, the complainant's supporting deposition, which contained nonhearsay allegations, clarifies that the "boxcutter razor" was not used in the assault, but related, instead, to the weapon possession charges.
Furthermore, the nonhearsay allegations in the supporting deposition established the "dangerous instrument" element of the crime of assault in the second degree (Family Ct Act § 311.2; Penal Law § 120.05; Matter of Jahron S., 79 N.Y.2d 632; Matter of Detrece H., 78 N.Y.2d 107; Matter of David T., 75 N.Y.2d 927, 929; Matter of Verna C., 143 A.D.2d 94). The term "dangerous instrument" is defined in Penal Law § 10.00 (13) as "any instrument, article or substance * * * which, under the circumstances in which it is used * * * is readily capable of causing death or other serious physical injury". The complainant averred in his supporting deposition that he was thrown to the ground and kicked by the appellant, as well as five other attackers. While he did not specify that the appellant wore footwear at the time of the assault, it was a logical assumption given the date of the incident — January 24, 1991. We find that the shoe, sneaker, or boot with which the appellant kicked the complainant, under the circumstances of this case, constituted a "dangerous instrument" within the meaning of Penal Law § 10.00 (13) and, thus, satisfied the requirements of Family Court Act § 311.2 (3) (see, People v Carter, 53 N.Y.2d 113; People v O'Hara, 124 A.D.2d 895; People v Bidwell, 153 A.D.2d 960).
Viewing the evidence in the light most favorable to the presentment agency (see, People v Contes, 60 N.Y.2d 620; Matter of Jamal C., 186 A.D.2d 562), we find that it was legally sufficient to establish, beyond a reasonable doubt, the "physical injury" element of the crimes of assault in the second degree and assault in the third degree (see, Penal Law § 120.05; § 120.00 [1]; § 10.00 [9]). The complainant's testimony established that he was punched in his head and chest, and was thrown to the ground where six assailants, including the appellant, kicked him. As a result of the assault, he sustained "chest pain for at least three days", and a "big bump" on his forehead which later developed into a bruise. He requested medical attention after the assault, and subsequently treated his injuries by taking aspirin, rubbing a topical medication on his chest, and putting an icepack on his head. He also felt "dizzy and weak" for about a day. This evidence was sufficient to support the fact-finder's determination that the complainant had sustained "physical injury" within the meaning of Penal Law § 10.00 (9) (see, Matter of Philip A., 49 N.Y.2d 198, 200; see also, People v Greene, 70 N.Y.2d 860; People v Miller, 146 A.D.2d 809; People v Scott, 162 A.D.2d 479; People v Soto, 184 A.D.2d 673).
The hearing court properly denied the appellant's request for a missing witness charge, since he failed to demonstrate that the uncalled witness — the complainant's father — was knowledgeable about a material issue in the case, and that the uncalled witness would naturally be expected to provide testimony favorable to the prosecution (see, People v Kitching, 78 N.Y.2d 532, 537; People v Gonzalez, 68 N.Y.2d 424, 427; People v Farrow, 187 A.D.2d 667 [decided herewith]).
The appellant's remaining contention is unpreserved for appellate review (see, CPL 470.05). Thompson, J.P., Eiber, Copertino and Pizzuto, JJ., concur.