In re Lovenia V.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence. Appellant’s conduct in chest-butting her teacher, swinging at him hard enough to cause a scratch, and then continuing to kick and lash out for several minutes supported an inference that she intended to cause physical injury (see e.g. Matter of Jose B., 47 AD3d 461 [2008]), especially since relatively minor injuries causing moderate, but “more than slight or trivial pain” may constitute physical injury (People v Chiddick, 8 NY3d 445, 447 [2007]; see also People v Guidice, 83 NY2d 630, 636 [1994]). The evidence also supported the finding as to second-degree menacing, in that appellant placed the victim in reasonable fear of physical injury (see Matter of Tjay T., 34 AD3d 1060, 1061 [2006]) by threatening him with an umbrella, which, under the circumstances, was a dangerous instrument (see People v Dones, 279 AD2d 366 [2001], lv denied 96 NY2d 799 [2001]).

The charge of attempted third-degree assault should have been dismissed as a lesser included offense of attempted second-degree assault. Concur — Tom, J.E, Nardelli, Renwick, Freedman and Roman, JJ.