Kim H., Matter of
| Decision Date | 01 July 1985 |
| Parties | In the Matter of KIM H. (Anonymous), Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lenore Gittis, New York City (Mary A. Clarke, New York City, of counsel), for appellant.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (June A. Witterschein and Marvin R. Kwartler, New York City, of counsel), for respondent.
Before BRACKEN, J.P., and O'CONNOR, RUBIN and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
Appeal from an order of disposition of the Family Court, Kings County, dated October 6, 1983, which, upon a fact-finding determination of the same court, made after a hearing, that appellant had committed acts which, if committed by an adult, would have constituted the crime of assault in the third degree, placed her on probation for one year.
Order affirmed, without costs or disbursements.
Appellant claims that the evidence was insufficient to disprove her defense of justification beyond a reasonable doubt (People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527). However, the testimony of complainant, which the Family Court was entitled to credit, indicated that appellant not only struck the first blow of the altercation, but that she continued to be aggressive and finally cut complainant in the back with an object resembling a hook. This testimony, in addition to other evidence adduced at the fact-finding hearing, was sufficient to sustain the Family Court's determination regarding assault in the third degree (see, Matter of Isaac W., 89 A.D.2d 831, 453 N.Y.S.2d 432; Penal Law § 120.00[1] ). Furthermore, the defense of justification is inapplicable here because there is ample evidence that the physical force used by appellant was "the product of a combat by agreement not specifically authorized by law" (Penal Law § 35.15[1][c] ). Thus, there is no basis for appellant's justification defense.
We have reviewed appellant's remaining contentions and find them to be without merit.
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