| Matter of Nico S.C. |
| 2010 NY Slip Op 01268 [70 AD3d 1474] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Nico S.C., Appellant. Monroe County Attorney,Respondent. |
—[*1] Daniel M. DeLaus, Jr., County Attorney, Rochester (Timothy M. Lexvold of counsel), forpetitioner-respondent.
Appeal from an amended order of the Family Court, Monroe County (Joseph G. Nesser, J.),entered February 26, 2009 in a proceeding pursuant to Family Court Act article 3. The amendedorder adjudicated respondent a juvenile delinquent.
It is hereby ordered that the amended order so appealed from is unanimously affirmedwithout costs.
Memorandum: On appeal from an order adjudicating him to be a juvenile delinquent basedon the finding that he committed an act that, if committed by an adult, would constitute the crimeof assault in the third degree (Penal Law § 120.00 [2]), respondent contends that theevidence is legally insufficient to support the finding that his acts constituted reckless assault.We note at the outset that, although respondent appeals from the order rather than the subsequentamended order, in the exercise of our discretion we treat the notice of appeal as valid and deemthe appeal as taken from the amended order (see Matter of Steven M., 37 AD3d 1072 [2007]; see alsoCPLR 5520 [c]).
In any event, we reject respondent's contention. Both respondent and his mother testifiedthat, while they were arguing with each other, respondent grabbed his mother's arm. Afterrespondent and his mother fell to the floor, respondent held her wrists and bit her shoulder. Evenassuming, arguendo, that we credit the testimony of respondent that he was attempting to calmhis mother down by subduing her, we conclude the evidence is legally sufficient to supportFamily Court's determination that respondent consciously disregarded a substantial andunjustifiable risk that his mother would sustain a physical injury (see Penal Law §15.05 [3]; § 120.00 [2]; People vGordon, 34 AD3d 316 [2006], lv denied 8 NY3d 880 [2007]; see also Matter of Jehadh S., 24 AD3d128 [2005]). We further conclude that the evidence is legally sufficient to support the court'sfinding that respondent's mother sustained a physical injury, i.e., substantial pain, as a result ofrespondent's conduct (see Penal Law § 10.00 [9]). The photographs presented bythe presentment agency support the testimony of respondent's mother that she sustained a bitemark on her right shoulder and extensive bruising on her shoulders, arms and wrists. Further,respondent's mother testified that she sought medical treatment for her injuries, which includedpain and swelling of [*2]her wrists and left shoulder (seeJehadh S., 24 AD3d 128 [2005]; People v Bowen, 17 AD3d 1054, 1055-1056 [2005], lv denied5 NY3d 759 [2005]). Finally, we conclude that the court was entitled to credit the testimonyof respondent's mother that on a scale of 1 to 10, she rated her pain level at 7 to 8, and that thepain lasted for several days. Thus the court properly determined that the injuries causedrespondent's mother substantial pain (see People v Coombs, 56 AD3d 1195, 1196 [2008], lv denied12 NY3d 782 [2009]; see generally People v Guidice, 83 NY2d 630, 636 [1994]).Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.