Opinion
570059/06.
Decided January 29, 2008.
Defendant appeals from a judgment of the Supreme Court, Bronx County (Richard Lee Price, J.), rendered September 8, 2005, after a nonjury trial, convicting her of attempted assault in the third degree and disorderly conduct, and imposing sentence.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Judgment of conviction (Richard Lee Price, J.), rendered September 8, 2005, modified, on the law, to vacate defendant's conviction of disorderly conduct and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.
The verdict convicting defendant of third-degree attempted assault (Penal Law §§ 110.00/120.00 [1]) was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's intent to cause physical injury to the complainant police officer was inferable from defendant's conduct in "flailing" her arms and striking the officer in the face with her elbow and hands ( see Matter of Marcel F., 233 AD2d 442). "The mere fortuity that a physical injury was not inflicted is no defense to the charges of attempted assault'" ( id., quoting Matter of Carlton P., 143 AD2d 833).
However, a case of disorderly conduct ( see Penal Law § 240.20) was not made out beyond a reasonable doubt since the evidence does not establish that defendant's conduct was intended to or recklessly created a substantial risk of "a potential or immediate public problem" ( People v Munafo, 50 NY2d 326, 331; see People v Delhall, 131 AD2d 870; cf., People v Todaro, 26 NY2d 325).
The only evidence bearing upon the circumstances surrounding the incident or the nature of the crime scene was police testimony that the altercation occurred at night in a dimly lit area in the Bronx near a chain link fence against which defendant and a male companion had been amorously "entwined" moments before. Notably absent was any allegation or proof that a crowd gathered at the scene or that any passersby witnessed the altercation.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.