In re Carl S. , 482 N.Y.S.2d 22 ( 1984 )

—Order entered June 16, 1983 in Family Court, Bronx County (Stanley H. Nason, J.), finding appellant guilty of committing acts which, if done by an adult, would constitute the crimes of robbery in the third degree and assault in the third degree; adjudicating him to be a juvenile delinquent; and placing him on probation for one year, is unanimously modified to the extent of dismissing the finding of assault in the third degree, and the order is otherwise affirmed, without costs.

We have reviewed the record and agree with both appellant and respondent that the evidence was insufficient to make out the charge of assault in the third degree inasmuch as the essential element of that crime, actually causing “physical injury”, did not occur. (See Penal Law, §§ 120.00, 10.00, subd 9.) The punches as described by the victim were obviously “ ‘delivered out of hostility, meanness and similar motives’ ” but that is not enough to constitute this class A misdemeanor. (Matter of Philip A., 49 NY2d 198, 200, quoting from the Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330.) There being no lesser included offense, we must dismiss the finding which sustained that charge. However, notwithstanding the concession of Corporation Counsel regarding the robbery charge, we find no issue of repugnancy.

We have considered appellant’s other assignments of error and find them to be without merit. Concur — Sandler, J. P., Ross, Carro, Silverman and Kassal, JJ.