In re Philip A. , 63 A.D.2d 924 ( 1978 )

Order, Family Court of the State of New York, Bronx County, entered on November 14, 1977, affirmed, without costs and without disbursements. Concur—Murphy, P. J., Lupiano and Birns, JJ.; Silverman and Sullivan, JJ., dissent in a memorandum by Silverman, J., as follows: I would reverse the order of disposition and the finding of fact which found appellant to be a juvenile delinquent, and would remand the matter to the Family Court for further proceedings. The misconduct which appellant was found to have committed consisted of punching another boy twice causing redness of the cheek and causing the other boy to cry. The other boy’s mother simply applied cold water to his cheek. If committed by an adult, I do not think this would constitute proof beyond a reasonable doubt (Family Ct Act, § 744, subd [b]) of the crime of assault in the third degree (Penal Law, § 120.00), because of the absence of the element of "physical injury.” " 'Physical injury’ means impairment of physical condition or substantial pain.” (Penal Law, § 10.00, subd 9.) There was clearly no "impairment of physical condition”, and "substantial pain” was not proved beyond a reasonable doubt. Ordinarily this would require dismissal of the petition. But in view of the fact that there were a large number of other petitions pending with respect to this boy, and the Family Court Judge was disposing of all of them on the basis of this one fact finding, I think the matter should be remanded to the Family Court for further proceedings.