Matter of Lovenia V.

Matter of Lovenia V. 2009 NY Slip Op 09069 [68 AD3d 476] December 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Lovenia V., a Person Alleged to be a Juvenile Delinquent, Appellant.

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Tamara A. Steckler, The Legal Aid Society, New York (Susan Clement of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about September 8, 2008, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that she committed acts which, if committed by an adult, would constitute the crimes of attempted assault in the second and third degrees and menacing in the second degree, and placed her on probation for a period of 12 months, unanimously modified, on the law, to the extent of vacating the finding as to attempted assault in the third degree and dismissing that count of the petition, and otherwise affirmed, without costs.

The court's finding was based on legally sufficient evidence and was not against the weight of the evidence. Appellant's conduct in chest-butting her teacher, swinging at him hard enough to cause a scratch, and then continuing to kick and lash out for several minutes supported an inference that she intended to cause physical injury (see e.g. Matter of Jose B., 47 AD3d 461 [2008]), especially since relatively minor injuries causing moderate, but "more than slight or trivial pain" may constitute physical injury (People v Chiddick, 8 NY3d 445, 447 [2007]; see also People v Guidice, 83 NY2d 630, 636 [1994]). The evidence also supported the finding as to second-degree menacing, in that appellant placed the victim in reasonable fear of physical injury (see Matter of Tjay T., 34 AD3d 1060, 1061 [2006]) by threatening him with an umbrella, which, under the circumstances, was a dangerous instrument (see People v Dones, 279 AD2d 366 [2001], lv denied 96 NY2d 799 [2001]). [*2]

The charge of attempted third-degree assault should have been dismissed as a lesser included offense of attempted second-degree assault. Concur—Tom, J.P., Nardelli, Renwick, Freedman and Roman, JJ.