In re Anita M. ( 1994 )

Order, Family Court, New York County (Bruce Kaplan, J.), entered April 21, 1993, which adjudicated appellant a juvenile delinquent following a fact-finding determination that she had committed acts which, if committed by an adult, would constitute the crime of attempted assault in the third degree, and placed her with the Division for Youth for a period of 12 months, unanimously affirmed, without costs.

Viewing the facts in the light most favorable to the presentment agency (see, People v Acosta, 80 NY2d 665, 672), the evidence clearly established that appellant intentionally attempted to cause physical injury to the executive director of the group home where she was a resident. The court reasonably credited the testimony of the executive director that appellant first expressed her intent to injure her physically when she threatened to "beat [her] up”, "mess [her] up”, and "kick [her]”. Then, appellant lunged at her, threw a punch, and threw several kicks at her. One of these kicks struck the director, caused her pain, and required subsequent treatment.

Appellant’s request that the court draw a negative inference against the presentment agency because of its failure to call two witnesses was untimely. In addition, the testimony of the witnesses would merely have been cumulative (see, People v Gonzalez, 68 NY2d 424, 427). Concur — Sullivan, J. P., Rosenberger, Kupferman and Ross, JJ.