| Matter of Shawn D.R.-S. |
| 2012 NY Slip Op 03326 [94 AD3d 1541] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Shawn D.R.-S., a Person Alleged to be a JuvenileDelinquent, Appellant. Wayne County Attorney, Respondent. (Appeal No.1.) |
—[*1] Daniel M. Wyner, County Attorney, Lyons (Kathleen H. Pohl of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Wayne County (Dennis M. Kehoe, J.), enteredSeptember 13, 2011 in a proceeding pursuant to Family Court Act article 3. The order, amongother things, adjudicated respondent to be a juvenile delinquent and placed him in the custody ofthe New York State Office of Children and Family Services.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the provision adjudicating respondent a juvenile delinquent based upon the finding thathe committed an act that, if committed by an adult, would constitute the crime of assault in thethird degree and substituting therefore a provision adjudicating respondent a juvenile delinquentbased upon a finding that he committed an act that, if committed by an adult, would constitutethe crime of attempted assault in the third degree, and as modified the order is affirmed withoutcosts.
Memorandum: Respondent appeals from an order adjudicating him to be a juveniledelinquent based on the finding that he committed an act that, if committed by an adult, wouldconstitute the crime of assault in the third degree (Penal Law § 120.00 [1]). Respondentwaived a dispositional hearing and consented to placement in the custody of the New York StateOffice of Children and Family Services for a period of one year. We agree with respondent thatthe 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 NY2d 198, 200 [1980]). Viewed in the light most favorable tothe presentment agency, the evidence establishes that respondent and another individual hit thevictim several times in the face and back of the head, causing him to suffer three minor cuts onhis face, swelling on his nose and behind his ear and a red bruise on his neck (see PhilipA., 49 NY2d at 200; People v Patterson, 192 AD2d 1083 [1993]). The victimtestified at the fact-finding hearing that the injuries did not hurt and, although he sought medicalattention approximately three hours after the incident, there is no evidence that he neededstitches, that he was prescribed pain medication or that he received any further treatment (see Matter of Jonathan S., 55 AD3d1324, 1325 [2008]; People vRichmond, 36 AD3d 721, 722 [2007]; People v Green, 145 AD2d 929, 931[1988]). In addition, neither the victim nor his mother testified that the victim had any lingeringpain or scarring in the days [*2]following the incident (cf. Matter of Nico S.C., 70 AD3d1474, 1475 [2010]; People vSmith, 45 AD3d 1483, 1483 [2007], lv denied 10 NY3d 771 [2008]; Peoplev Wooden, 275 AD2d 935, 936 [2000], lv denied 96 NY2d 740 [2001]).
We agree with the presentment agency, however, that the acts proved would, if committed byan adult, constitute the lesser included offense of attempted assault in the third degree (PenalLaw §§ 110.00, 120.00 [1]; see Matter of Kristie II., 252 AD2d 807,807-808 [1998]; see generally Matter of Dwight M., 80 NY2d 792, 793-794 [1992])."The absence of proof of an actual physical injury does not preclude a finding that respondentattempted to inflict such injury" (Kristie II., 252 AD2d at 808; see also People vLewis, 294 AD2d 847, 847 [2002]) and, here, respondent's intent to cause physical injury canbe inferred from his act of repeatedly punching the victim in the head with a closed fist (seeMatter of Dowayne H., 278 AD2d 706, 707 [2000]; Kristie II., 252 AD2d at 808).We therefore modify the order by vacating the provision adjudicating respondent a juveniledelinquent based upon the finding that he committed an act that, if committed by an adult, wouldconstitute the crime of assault in the third degree and substituting therefore a provisionadjudicating 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., 65AD3d 1042, 1043-1044 [2009]; Matter of William A., 4 AD3d 647, 649-650 [2004]; Matter ofPhoenix G., 265 AD2d 554, 554-555 [1999]). In light of our determination, we do notaddress respondent's remaining contentions. Present—Centra, J.P., Peradotto, Lindley,Sconiers and Martoche, JJ.