Matter of Jose B.
2008 NY Slip Op 00198 [47 AD3d 461]
January 15, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 12, 2008

In the Matter of Jose B., a Person Alleged to be a Juvenile Delinquent, Appellant.

[*1] Tamara A. Steckler, The Legal Aid Society, New York City (Marcia Egger of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Alan Beckoff of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about July 5, 2007, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime 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 in the third degree, and otherwise affirmed, without costs.

Appellant approached the victim in the hallway of their high school and hit him several times on the arm and back. Shortly thereafter, appellant entered the classroom in which the victim was sitting and, again, hit him several times, with a closed fist, on the arm and shoulder. The victim testified that he felt pain in his arm and back for several days thereafter, which interfered with his performance of some household chores. The victim, who apparently did not miss any school, first sought medical attention the day after the incident. The medical records indicated only a diagnosis 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 the attack, 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 suffered impairment 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 warrant an inference of physical injury (compare People v Chiddick, 8 NY3d 445[*2][2007]). Accordingly, the evidence supports a finding of attempted, but not completed, third-degree assault. Concur—Lippman, P.J., Buckley, Gonzalez and Sweeny, JJ.