In re Lovenia V.

Appellate Division of the Supreme Court of New York

In re Lovenia V.

68 A.D.3d 476, 888 N.Y.2d 884

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 8, 2009

StatusPublished

This text of 68 A.D.3d 476 (In re Lovenia V.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Lovenia V., 68 A.D.3d 476, 888 N.Y.2d 884 (N.Y. Ct. App. 2009).

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Opinion

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]).

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

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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]).

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

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Bluebook (online)

68 A.D.3d 476, 888 N.Y.2d 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lovenia-v-nyappdiv-2009.

Opinion

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