IN RE: JOSE B. (2008)

 Order of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or about July 5, 2007, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed an act which, if committed by an adult, would constitute the crime of assault in the third degree, and placed him on probation for a period of 12 months, unanimously modified, on the law, to the extent of reducing the finding to attempted assault in the third degree, and otherwise affirmed, without costs.

Appellant approached the victim in the hallway of their high school and hit him several times on the arm and back.   Shortly thereafter, appellant entered the classroom in which the victim was sitting and, again, hit him several times, with a closed fist, on the arm and shoulder.   The victim testified that he felt pain in his arm and back for several days thereafter, which interfered with his performance of some household chores.   The victim, who apparently did not miss any school, first sought medical attention the day after the incident.   The medical records indicated only a diagnosis of minor soft tissue trauma, for which Motrin was prescribed, without any bruising, reduction in range of motion, or other indication of injury.

By repeatedly punching the victim, and following him into a classroom to continue the attack, appellant demonstrated his intent to cause physical injury (see Matter of Eric C., 281 A.D.2d 543, 722 N.Y.S.2d 61 [2001] ).   However, the evidence does not establish that the victim suffered impairment of physical condition or substantial pain (see Penal Law § 10.00[9];  People v. Baksh, 43 A.D.3d 1072, 845 N.Y.S.2d 343 [2007] ).   The victim's testimony, viewed in light of the objective circumstances, does not warrant an inference of physical injury (compare People v. Chiddick, 8 N.Y.3d 445, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ).   Accordingly, the evidence supports a finding of attempted, but not completed, third-degree assault.