Opinion
No. 1794.
December 17, 2009.
Order of disposition, Family Court, Bronx County (Robert R. Reed, J.), entered on or about September 8, 2008, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that appellant committed acts, which, if committed by an adult, would constitute the crimes of assault in the second and third degrees, attempted assault in the second and third degrees and menacing in the second and third degrees, unanimously modified, on the law, to the extent of vacating the findings as to assault in the third degree, attempted assault in the second and third degrees, and menacing in the second and third degrees, and dismissing those counts of the petition, and otherwise affirmed, without costs.
Tamara A. Steckler, The Legal Aid Society, New York and Davis Polk Wardwell, New York (Gur Bligh of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for Presentment Agency.
Before: Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.
The court's finding as to second-degree assault under Penal Law § 120.05 (10) (a) was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Danielson, 9 NY3d 342, 348-349). The evidence warrants the inference that when appellant threw a book containing cassettes at her teacher, which struck the teacher in the head and caused physical injury, appellant intended the natural consequence of her act, which was to cause such injury ( see generally People v Getch, 50 NY2d 456, 465). However, the menacing charges were not established, in that there was no evidence of any threatening behavior before, after, or otherwise separate from the sudden attack. In addition, the dangerous instrument element of second-degree menacing (Penal Law § 120.14) was not established, because the book of cassettes was not a dangerous instrument under the circumstances (as the court expressly found when it dismissed all other counts containing a dangerous instrument element). The remaining counts should have been dismissed as lesser included offenses of second-degree assault.