The Respondent, Danasia I., now age 14, is before the Court on a delinquency petition charging Assault in the Second Degree and other counts relating to an incident in the Atlantic Mall Target store on September 8, 2023.

The Fact-Finding hearing was conducted over several court dates: November 14th, November 21st, and December 6, 2023. The Presentment Agency called Police Officer ("PO") Sandy as its sole witness and submitted one video into evidence. The Respondent (hereinafter "Respondent" or "Danasia") did not introduce any evidence.

Preliminarily, the Court must address the issue of the Presentment Agency's failure to turn over the photograph of PO Sandy's alleged injury to the defense. This was clearly a violation of the discovery provision in Family Court Act ("FCA") § 331.2(d) and is also [*2]potential impeachment or exculpatory material. The fact that the photograph's existence was not discovered until after the Respondent cross-examined the officer and the Presentment Agency rested requires some sanction beyond reopening the hearing, as damage from the failure has been done. Therefore, the Court agrees with the defense that it is appropriate to draw an adverse inference as to the contents of the photograph such that the Court will consider that the photograph would NOT have supported the Presentment Agency's case for the element of physical injury or even for the existence of the bruise testified to by PO Sandy.

The Presentment Agency has the burden to establish every element of each crime charged beyond a reasonable doubt. While Officer Sandy's tone and manner on the stand was unnecessarily defensive, the Court does credit her testimony overall as to what occurred onSeptember 8, 2023, at the Target in Atlantic Mall. When PO Sandy was coming back from her meal break at 4:30pm, she saw a large group of approximately 20-25 teenagers being escorted out of Target by officers from a different precinct as well as Target officers. PO Sandy engaged with at least a few of these young people, including the Respondent, and was able to observe that they were acting disorderly even after being escorted out. She also was able to, and did, hear the Respondent and other members of the group being told they could not return to the store. At approximately 5:15 pm, PO Sandy saw some members of the group return to the store. It is true that she and her partner seemed, from the video, to allow the first two young men to return without prohibiting their entrance. It appears, perhaps alerted by the first members of the group who returned, that PO Sandy and her partner did immediately approach Danasia and the two boys with her, who were the next members of the group to follow closely behind the first two. The Court credits PO Sandy's testimony that as soon as she and her partner came in proximity of Danasia and the two boys, Danasia started screaming "no one is going to touch me!" The video neither supports nor controverts this part of the PO's testimony since it does not have sound; however, the video does corroborate what PO Sandy says happened next — that Danasia pushed PO Sandy in PO Sandy's upper body in what appears to be an attempt to get the PO away from her. At that point, PO Sandy says that she tried to grab Danasia's hand and Danasia began flailing her arms, again in an effort to prevent the PO from touching her. Danasia also reached in he direction of PO Sandy's neck. PO Sandy and her partner then succeeded in grabbing both of Danasia's hands and took her to the office, placing her under arrest. PO Sandy stated that she had a bruise on her arm from where Danasia initially pushed her and that this caused her some pain for which she took Tylenol. The bruise lasted about one week, and she used arnica gel on it. PO Sandy did not obtain any medical treatment, nor did she stay home from work as a result of these events.

A person is guilty of Assault in the Second Degree when, in sum, with intent to prevent a police officer from performing a lawful duty, a person causes physical injury to such police officer.

The specific charge here relates to injuries caused to public servants, including police officers, in the line of duty and requires only an intent by the offender to prevent that person from performing their lawful duty. The Court finds that the Presentment Agency did prove beyond a reasonable doubt that Danasia was intending to prevent PO Sandy from performing her uty in trying to prevent the young people who were part of the previous group from reentering the store. The fact that the PO and her partner were not fully successful in accomplishing this task because the teenagers came back in smaller groups close in time does not negate the proof that this is what the PO was trying to do, and she was lawfully required by her job to perform this function. In part because Danasia reacted so strongly and in opposition to even being approached by the officers, she became the focus of the two officers' actions with the result that the two young men with her slipped by and entered the store.

However, the Court does not find that the PA established physical injury as defined in PL § 10.00(9). The statute requires that the victim has suffered either substantial pain or impairment of physical condition for the injury to rise to the legal level of this element. Here, the PA argues that PO Sandy suffered from substantial pain. Both the PA and defense cite People v. Chiddick as authority for their arguments. 8 NY3d 445 (2007). That case states clearly that substantial pain must be more than "slight or trivial pain," though it need not be severe or intense. Moderate pain was found sufficient in that case. However, the Court of Appeals also notes that there is an objective component that must be considered, which is whether the manner of the injury is one that would be likely to cause substantial pain. That case involved a fingernail that was bitten by the defendant and bled. In this case, the injury is a bruise to the arm caused by one push to the PO's upper body. The Court does not believe that is an injury that would objectively cause substantial pain. Notably, unlike the victim in People v. Chiddick, the PO did NOT obtain medical treatment and did not feel any need to stay home from work. The fact that she took Tylenol is not enough per se to establish that the pain was substantial. Nor is the use of arnica for one week, which is a gel generally used to make bruises heal faster. Finally, the Court is applying the negative inference to this element which further diminishes the proof of injury.

While the Presentment Agency argued that the Court could find attempted assault, second degree, in this situation, the Court of Appeals has held that attempted assault in the second degree under section 120.05(3) is a "legal impossibility." People v. Campbell, 72 NY2d 602 (1988); People v. Wyrich, 259 AD2d 718 (2nd Dept., 1999).

Therefore, Count 1 is dismissed with prejudice.

"A person is guilty of assault in the third degree when with intent to cause physical injury to another person, he causes such injury to such person or to a third person."

Given this Court's finding that there was no proof of physical injury, the most the Court could find here would be Attempted Assault in the Third Degree; however, that charge requires a finding of INTENT to cause physical injury.

Again, in People v Chiddick, the Court of Appeals noted the legislative history of Penal Law § 10.00(9), which states that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives" constitute only harassment, not assault because they do not inflict physical injury. The Court stated that a perpetrator's "motive is relevant to a finding of [*3]assault because an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it." Here, Danasia's clear motive or intent was simply to keep the PO from touching her and to keep PO Sandy away from her. Furthermore, in Matter of Sharard W., the Second Department held that "intent can be inferred from the act itself or from the conduct and the surrounding circumstances." 31 AD3d 458 (2006). In contrast to that case where the Respondent threw a chair at a teacher's head, nothing Danasia did was a significant enough act from which the Court could infer an intent to injure the officer. A single push, flailing of arms, and even grabbing towards a person, do not have a natural consequence of causing injury.

Therefore, the Court finds that the element of intent to cause physical injury was not established beyond a reasonable doubt. Accordingly, Count 2 is dismissed with prejudice.

"A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration."

As to Count 3, the Court does find that the elements of Obstructing Governmental Administration in the Second Degree were established beyond a reasonable doubt. Danasia clearly knew PO Sandy was a police officer, as she was in uniform, and Danasia was part of a larger group that had been told to leave the store by other police officers known to PO Sandy just 45 minutes before. When Danasia attempted to reenter the store, she was approached by PO Sandy as part of the officer's lawful duty to prevent Danasia from reentering the store. Before PO Sandy even got close to Danasia, Danasia began screaming and then pushed her away and, in doing so, Danasia prevented the officer from performing her lawful duty by means of physical force and interference.

Therefore, the Court is making a finding to Count 3.

"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person."

The issue for Count 4 relates to the timing of the arrest. Based on the video placed in evidence, the Court notes that this whole incident from start to finish took less than 30 seconds. PO Sandy never testified as to any point in the encounter where she told Danasia she was placing her under arrest. Thus, it was never clear exactly when the officer began attempting to effectuate [*4]Danasia's arrest. Rather, PO Sandy described in her testimony taking Danasia to the office with her partner after she and her partner grabbed Danasia's hands at the end of the incident. It is clear Danasia was placed under arrest at this moment. There was no testimony of acts of resistance after this point. Rather, all the physical acts engaged by Danasia in this brief, fast-paced incident came earlier as part of her actions obstructing governmental administration and that is the crime which gave PO Sandy the basis to arrest her. Those same acts cannot also constitute a basis for a resisting arrest finding as the arrest has to have begun BEFORE the physical acts of resistance occurred. The time here is too short to parse out separate acts of resistance from the incident itself.

Therefore, Count 4 is dismissed with prejudice.

Therefore, for the reasons stated, the Presentment Agency has met its burden of proof only as to Count 3, Obstructing Governmental Administration in the Second Degree, and a finding will be entered as to that count. The other three counts of the petition are dismissed with prejudice.