In re Cisely G.

• Decision Date: 17 February 2011
• Citation: 918 N.Y.S.2d 23,81 A.D.3d 508
• Parties: In re CISELY G., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 23
81 A.D.3d 508

In re CISELY G., A Person Alleged to be a Juvenile Delinquent, Appellant.
Presentment Agency.

Supreme Court, Appellate Division, First Department, New York.

Feb. 17, 2011.

918 N.Y.S.2d 24

Randall S. Carmel, Syosset, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg of counsel), for presentment agency.

TOM, J.P., SAXE, DeGRASSE, FREEDMAN, ROMÁN, JJ.

81 A.D.3d 508

Order of disposition, Family Court, Bronx County (Robert R. Reed, J. at fact-finding hearing; Nancy M. Bannon, J. at disposition), entered on or about February 22, 2010, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that she committed acts that, if committed by an adult, would constitute the crimes of attempted gang assault in the second degree and assault in the third degree, unanimously modified, on the law, to the extent of vacating the finding as to attempted gang assault in the second degree, dismissing that count of the petition and remanding for a new dispositional hearing, and otherwise affirmed, without costs.

The count of the petition charging appellant with committing acts constituting second-degree gang assault alleges that "with intent to cause physical injury to another person and when aided by two or more other persons actually present [she] caused/attempted to cause physical injury to such person or to a third person." However, these are not the elements of gang assault in the second degree, where the required result is serious physical injury. Therefore, this count was defective.

Moreover, attempted gang assault in the second degree is a legal impossibility for trial purposes ( Matter of Stephanie R., 196 Misc.2d 659, 766 N.Y.S.2d 313 [Family Ct., Queens County 2003] ), as "there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended" ( People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86 [1988] ). Since second-degree gang assault involves the intended result of physical injury and the unintended result of serious physical injury, it is similar to first-degree manslaughter, which cannot be attempted because "there can be no attempt to commit a crime where one

81 A.D.3d 509

of the elements is a specific intent but another, an unintended result" ( People v. McDavis, 97 A.D.2d 302, 304, 469 N.Y.S.2d 508 [1983], lv. denied 61 N.Y.2d 910, 474 N.Y.S.2d 1033, 462 N.E.2d 1211 [1984] ). The only...