Opinion
2856.
Decided February 17, 2004.
Order of disposition, Family Court, New York County (Helen Sturm, J.), entered on or about January 16, 2003, adjudicating appellant a juvenile delinquent, upon a fact-finding determination that he committed acts, which if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees, menacing in the second and third degrees, and criminal possession of a weapon in the fourth degree, and placing him in the custody of the State Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings of attempted assault in the third degree and menacing in the third degree and dismissing those counts of the petition, and otherwise affirmed, without costs.
Diane Pazar, for Appellant.
Dona B. Morris, for Presentment Agency.
Before: Buckley, P.J., Sullivan, Williams, Gonzalez, JJ.
The juvenile delinquency petition was not jurisdictionally defective ( see Matter of Jahron S., 79 N.Y.2d 632, 637-38).
Contrary to appellant's contention, the allegation that he swung a knife, described as a dangerous instrument, at the victim's ribs, without further describing the knife, was sufficient to establish the offenses charged. The manner in which the knife was used qualified it as a dangerous instrument ( see People v. Carter, 53 N.Y.2d 113). The factual allegations supported an inference that appellant attempted to cause impairment of physical condition or substantial pain, and placed or attempted to place the complainant in reasonable fear of imminent injury ( see People v. Bracey, 41 N.Y.2d 296).
The court's finding was supported by legally sufficient evidence. Appellant's intent to cause physical injury to the victim and to place him in fear of physical injury can be readily inferred from the fact that appellant displayed and swung a knife at the victim, causing him to wrestle with appellant in self-defense.
The third-degree attempted assault and menacing counts should have been dismissed as lesser included offenses of the second-degree attempted assault and menacing counts.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.