IN RE: JONATHAN S. (2008)

 Respondent appeals from an order adjudicating him to be a juvenile delinquent based on the finding that he committed an act that, if committed by an adult, would constitute the crime of assault in the second degree (Penal Law § 120.05[2] ).   Respondent failed to preserve for our review his contention concerning the alleged legal insufficiency of the evidence (see Matter of Troy F., 46 A.D.3d 467, 468, 848 N.Y.S.2d 142).   We nevertheless review respondent's contention in the interest of justice (see Matter of Yadiel Roque C., 17 A.D.3d 1168, 1169, 793 N.Y.S.2d 857), and we conclude that respondent is correct (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   In order to meet its burden with respect to the charge against respondent, petitioner was required to establish that, “[w]ith intent to cause physical injury to another person, [respondent] cause[d] such injury to such person ․ by means of a ․ dangerous instrument” (§ 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 complainant sustained a small cut below his eye and a puncture to his lip, and that the only treatment received by the complainant was an ice pack, a bandage, and ointment.   The record is devoid of any evidence that the complainant had scarring or pain following the incident.   We thus conclude on the record before us that the evidence is legally insufficient to establish the “impairment of [the complainant's] physical condition or substantial pain” (id.;   see Matter of Shawnell UU., 240 A.D.2d 947, 659 N.Y.S.2d 531;  see also People v. Jimenez, 55 N.Y.2d 895, 449 N.Y.S.2d 22, 433 N.E.2d 1270;  People v. Richmond, 36 A.D.3d 721, 826 N.Y.S.2d 748).   In view of our decision, we do not reach respondent's remaining contentions.

It is hereby ORDERED that the order so appealed from is unanimously reversed in the interest of justice and on the law without costs and the petition is dismissed.

MEMORANDUM: