In re Winston W.

Gonzalez and McGuire, JJ.

dissent in part in a memorandum

by McGuire, J., as follows: In my view, Family Court’s finding that appellant committed acts which, if committed by an adult, *474would have constituted the offense of assault in the third degree was erroneous.1 Accordingly, I respectfully dissent.

To satisfy the “physical injury” element of this offense, the presentment agency was required to prove “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). On this appeal, the presentment agency does not contend that the evidence established “impairment of physical…