In re Robert M.

87 A.D.2d 987, 450 N.Y.S.2d 118, 1982 N.Y. App. Div. LEXIS 16528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1982
• Status: Published

Opinion

Order unanimously reversed and petition dismissed. Memorandum: Family Court adjudicated appellant a juvenile delinquent upon a finding that he had committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree under subdivision 1 of section 120.00 of the Penal Law. Appellant contends that the record of the fact-finding hearing fails to establish that he caused “physical injury” to the complainant within the contemplation of subdivision 9 of section 10.00 of the Penal Law. That subdivision defines “‘[p]hysical injury’ ” as “impairment of physical condition or substantial pain.” Complainant, a physical education teacher, acknowledged that appellant struck him once in the forehead above his right eye with a closed fist. With respect to his injuries, complainant testified that the blow caused “just slight swelling [and] a little headache”; that he did not miss any time from work; that there was some redness but no bleeding and that he was not required to consult a doctor. This evidence, without more, is insufficient to establish that complainant suffered either “substantial pain” (Matter of Philip A., 49 NY2d 198; see, also, People v Jiminez, 55 NY2d 895) or “impairment of physical condition” within the provisions of the Penal Law (see People v Jimenez, supra; People v McDowell, 28 NY2d 373, 375; Matter of Robin B., 78 AD2d 679; People v Morales, 75 AD2d 745; Matter of Derrick M., 63 AD2d 932). (Appeal from order of Erie County Family Court, Kileen, J. — juvenile delinquent.) Present —■ Dillon, P. J., Callahan, Doerr, Boomer and Moule, JJ.