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...
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