IN RE: TYREEK G. (2011)

Order of disposition, Family Court, New York County (Susan R. Larabee, J.), entered on or about December 4, 2009, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of assault in the second and third degrees, attempted assault in the second and third degrees and criminal possession of a weapon in the fourth degree, and placed him with the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings as to assault in the third degree and attempted assault in the second and third degrees and dismissing those counts of the petition, and otherwise affirmed, without costs.

The court's findings were based on legally sufficient evidence and were not against the weight of the evidence.   There is no basis for disturbing the court's credibility determinations, including its conclusion that appellant was wearing a brace or cast at the time of the incident.

The testimony established that appellant used his forearm, which was covered with a brace or cast, to hit the victim on the head.   As a result, the victim sustained bumps on his head that were treated at an emergency room, and three days of severe headaches.   The headaches caused the victim to miss football tryouts and part of one school day.

The evidence supports the inference that the cast or brace was readily capable of causing serious physical injury under the circumstances of its use (see People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30 [1981];  People v. Davis, 96 A.D.2d 680, 466 N.Y.S.2d 540 [1983] ).   Accordingly, the court properly found that this object was a dangerous instrument (see Penal Law § 10.00[13] ).   The evidence also established the element of physical injury (see People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007];  People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994];  People v. James, 2 A.D.3d 291, 769 N.Y.S.2d 38 [2003], lv. denied 2 N.Y.3d 741, 778 N.Y.S.2d 467, 810 N.E.2d 920 [2004] ).

As the presentment agency concedes, the counts indicated should have been dismissed as lesser included offenses.