Opinion
2012-04-27
In the Matter of SHAWN D.R.-S., Respondent–Appellant.WAYNE COUNTY ATTORNEY, Petitioner–Respondent. (Appeal No. 1.)
Robert A. Dinieri, Attorney for the Child, Clyde, for Respondent–Appellant. Daniel M. Wyner, County Attorney, Lyons (Kathleen H. Pohl of Counsel), for Petitioner–Respondent.
Robert A. Dinieri, Attorney for the Child, Clyde, for Respondent–Appellant. Daniel M. Wyner, County Attorney, Lyons (Kathleen H. Pohl of Counsel), for Petitioner–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent appeals from an order adjudicating him to be a juvenile delinquent based on the finding that he committed an act that, if committed by an adult, would constitute the crime of assault in the third degree (Penal Law § 120.00[1] ). Respondent waived a dispositional hearing and consented to placement in the custody of the New York State Office of Children and Family Services for a period of one year. We agree with respondent that the evidence is legally insufficient to establish that the victim sustained physical injury, i.e., “impairment of physical condition or substantial pain” (§ 10.00[9]; § 120.00[1]; see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358). Viewed in the light most favorable to the presentment agency, the evidence establishes that respondent and another individual hit the victim several times in the face and back of the head, causing him to suffer three minor cuts on his face, swelling on his nose and behind his ear and a red bruise on his neck ( see Philip A., 49 N.Y.2d at 200, 424 N.Y.S.2d 418, 400 N.E.2d 358; People v. Patterson, 192 A.D.2d 1083, 596 N.Y.S.2d 234). The victim testified at the fact-finding hearing that the injuries did not hurt and, although he sought medical attention approximately three hours after the incident, there is no evidence that he needed stitches, that he was prescribed pain medication or that he received any further treatment ( see Matter of Jonathan S., 55 A.D.3d 1324, 1325, 865 N.Y.S.2d 180; People v. Richmond, 36 A.D.3d 721, 722, 826 N.Y.S.2d 748; People v. Green, 145 A.D.2d 929, 931, 536 N.Y.S.2d 611). In addition, neither the victim nor his mother testified that the victim had any lingering pain or scarring in the days following the incident ( cf. Matter of Nico S.C., 70 A.D.3d 1474, 1475, 894 N.Y.S.2d 272; People v. Smith, 45 A.D.3d 1483, 1483, 845 N.Y.S.2d 655, lv. denied 10 N.Y.3d 771, 854 N.Y.S.2d 333, 883 N.E.2d 1268; People v. Wooden, 275 A.D.2d 935, 936, 713 N.Y.S.2d 415, lv. denied 96 N.Y.2d 740, 722 N.Y.S.2d 807, 745 N.E.2d 1030).
We agree with the presentment agency, however, that the acts proved would, if committed by an adult, constitute the lesser included offense of attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1]; see Matter of Kristie II, 252 A.D.2d 807, 807–808, 676 N.Y.S.2d 249; see generally Matter of Dwight M., 80 N.Y.2d 792, 793–794, 587 N.Y.S.2d 275, 599 N.E.2d 679). “The absence of proof of an actual physical injury does not preclude a finding that respondent attempted to inflict such injury” ( Kristie II, 252 A.D.2d at 808, 676 N.Y.S.2d 249; see also People v. Lewis, 294 A.D.2d 847, 847, 741 N.Y.S.2d 760) and, here, respondent's intent to cause physical injury can be inferred from his act of repeatedly punching the victim in the head with a closed fist ( see Matter of Dowayne H., 278 A.D.2d 706, 707, 718 N.Y.S.2d 112; Kristie II, 252 A.D.2d at 808, 676 N.Y.S.2d 249). We therefore modify the order by vacating the provision adjudicating respondent a juvenile delinquent based upon the finding that he committed an act that, if committed by an adult, would constitute the crime of assault in the third degree and substituting therefore a provision adjudicating respondent a juvenile delinquent based upon a finding that he committed an act that, if committed by an adult, would constitute the crime of attempted assault in the third degree ( see generally Matter of Shourik D., 65 A.D.3d 1042, 1043–1044, 884 N.Y.S.2d 875; Matter of William A., 4 A.D.3d 647, 649–650, 772 N.Y.S.2d 130; Matter of Phoenix G., 265 A.D.2d 554, 554–555, 697 N.Y.S.2d 121). In light of our determination, we do not address respondent's remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the provision adjudicating respondent a juvenile delinquent based upon the finding that he committed an act that, if committed by an adult, would constitute the crime of assault in the third degree and substituting therefore a provision adjudicating respondent a juvenile delinquent based upon a finding that he committed an act that, if committed by an adult, would constitute the crime of attempted assault in the third degree, and as modified the order is affirmed without costs.