| Matter of Jonathan S. |
| 2008 NY Slip Op 07364 [55 AD3d 1324] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Jonathan S., Appellant. Oneida County Attorney,Respondent. |
—[*1] Linda M.H. Dillon, County Attorney, Utica (Raymond F. Bara of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered May 16,2007 in a proceeding pursuant to Family Court Act article 3. The order, among other things, adjudgedthat respondent is a juvenile delinquent.
It is hereby ordered that the order so appealed from is unanimously reversed in the interest ofjustice and on the law without costs and the petition is dismissed.
Memorandum: Respondent appeals from an order adjudicating him to be a juvenile delinquentbased on the finding that he committed an act that, if committed by an adult, would constitute the crimeof assault in the second degree (Penal Law § 120.05 [2]). Respondent failed to preserve for ourreview his contention concerning the alleged legal insufficiency of the evidence (see Matter of Troy F., 46 AD3d 467,468 [2007]). We nevertheless review respondent's contention in the interest of justice (see Matter of Yadiel Roque C., 17 AD3d1168, 1169 [2005]), and we conclude that respondent is correct (see generally People v Danielson, 9 NY3d342, 349 [2007]; People v Bleakley, 69 NY2d 490, 495 [1987]). In order to meet itsburden with respect to the charge against respondent, petitioner was required to establish that, "[w]ithintent to cause physical injury to another person, [respondent] cause[d] such injury to such person. . . by means of a . . . dangerous instrument" (Penal Law § 120.05[2]). " 'Physical injury' means impairment of physical condition or substantial pain" (§ 10.00 [9]).Here, petitioner presented evidence that, as a result of his altercation with respondent, the complainantsustained a small cut below his eye and a puncture to his lip, and that the only treatment received by thecomplainant was an ice pack, a bandage, and ointment. The record is devoid of any evidence that thecomplainant had scarring or pain following the incident. We thus conclude on the record before us thatthe evidence is legally insufficient to establish the "impairment of [the complainant's] physical conditionor substantial pain" (id.; see Matter of Shawnell UU., 240 AD2d 947 [1997]; seealso People v Jimenez, 55 NY2d 895 [1982]; People v Richmond, 36 AD3d 721 [2007]). In view of our decision, wedo not reach respondent's remaining contentions. Present—Martoche, J.P., Smith, Lunn, Pineand Gorski, JJ.