In re Shenay W.

68 A.D.3d 576, 891 N.Y.2d 67

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2009
• Status: Published

Opinion

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 [2007]). 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 [1980]). 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 [1]) 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. Concur — Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.