In re Robert W.

212 A.D.2d 1005, 622 N.Y.S.2d 405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1995
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: The adjudication that respondent committed an act that, if committed by an adult, would constitute the crime of assault in the third degree in violation of Penal Law § 120.00 (2) is supported by legally sufficient evidence (see, People v Leonardo, 89 AD2d 214, 217-218, affd 60 NY2d 683). We reject the contention of respondent that the proof did not establish that he was aware of and consciously disregarded a substantial and unjustifiable risk that injury would occur. Petitioner presented proof that respondent, with a closed fist, swung his arm intending to deliver a "roundhouse” blow to a fellow student, but instead, struck a teacher who was standing between respondent and that student. Under the circumstances, the evidence is sufficient to establish that respondent acted recklessly as that term is defined by Penal Law § 15.05 (3).

Although we reject the contention that respondent was deprived of a fair trial by the conduct of the Trial Judge, we note that it was improper for the Trial Judge to interrupt the summation of respondent’s attorney, to reopen the proof, and to order the presentment agency to produce the victim’s chiropractor for testimony when respondent’s attorney properly argued that the certified business record of that individual was not properly received in evidence pursuant to CPLR 4518. Such errors are harmless, however, because the victim’s testimony is sufficient to establish physical injury. (Appeal from Order of Monroe County Family Court, Bonadio, J.—Juvenile Delinquency.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.