In re Robert M. — 87 A.D.2d 987

Majority

p. 987

In the Matter of Robert M.

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

p. 988

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.

Cases cited

In re Philip A. 49 NY2d 198 N.Y. 1980-01-08 p. 988
People v. Jimenez 55 NY2d 895 N.Y. 1982-02-09 p. 988
People v. McDowell 28 NY2d 373 N.Y. 1971-05-13 at 375 p. 988
In re Robin B. 78 AD2d 679 N.Y. App. Div. 1980-10-20 p. 988
In re Derrick M. 63 AD2d 932 N.Y. App. Div. 1978-06-20 p. 988