| Matter of Jose B. |
| 2008 NY Slip Op 00198 [47 AD3d 461] |
| January 15, 2008 |
| Appellate Division, First Department |
| In the Matter of Jose B., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Alan Beckoff of counsel), forpresentment agency.
Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or aboutJuly 5, 2007, which adjudicated appellant a juvenile delinquent, upon a fact-findingdetermination that he committed an act which, if committed by an adult, would constitute thecrime of assault in the third degree, and placed him on probation for a period of 12 months,unanimously modified, on the law, to the extent of reducing the finding to attempted assault inthe third degree, and otherwise affirmed, without costs.
Appellant approached the victim in the hallway of their high school and hit him several timeson the arm and back. Shortly thereafter, appellant entered the classroom in which the victim wassitting and, again, hit him several times, with a closed fist, on the arm and shoulder. The victimtestified that he felt pain in his arm and back for several days thereafter, which interfered with hisperformance of some household chores. The victim, who apparently did not miss any school, firstsought medical attention the day after the incident. The medical records indicated only adiagnosis of minor soft tissue trauma, for which Motrin was prescribed, without any bruising,reduction in range of motion, or other indication of injury.
By repeatedly punching the victim, and following him into a classroom to continue theattack, appellant demonstrated his intent to cause physical injury (see Matter of Eric C.,281 AD2d 543 [2001]). However, the evidence does not establish that the victim sufferedimpairment of physical condition or substantial pain (see Penal Law § 10.00 [9];People v Baksh, 43 AD3d 1072[2007]). The victim's testimony, viewed in light of the objective circumstances, does not warrantan inference of physical injury (comparePeople v Chiddick, 8 NY3d 445[*2][2007]).Accordingly, the evidence supports a finding of attempted, but not completed, third-degreeassault. Concur—Lippman, P.J., Buckley, Gonzalez and Sweeny, JJ.