Respondent contends that the evidence presented at the fact-finding hearing was legally insufficient to establish that the complainant suffered a physical injury as defined in Penal Law § 10.00 (9) and, therefore, a charge of assault in the third degree (Penal Law § 120.00) cannot be sustained. Penal Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pain" and the definition is intended to exclude such things as "`petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives'" (Matter of Philip A., 49 N.Y.2d 198, 200 [citation omitted]).
The testimony here reveals that respondent grabbed the complainant by the throat with one hand and pushed him against the wall. Although the complainant claims that respondent's actions hurt him while he was being grabbed, such general assertions of pain are not enough to establish physical injury within the meaning of the statute (see, People v Cheeks,
161 A.D.2d 657; People v Rodriguez, 158 A.D.2d 376, lv denied 75 N.Y.2d 969). In addition, except for some marks that appeared later that day, he neither provided evidence as to the duration of any pain (see, Matter of Philip A., supra; People v Williams, 101 A.D.2d 870) nor "other objective indicia of `substantial pain'" (People v Cheeks, supra). Under the circumstances, we agree with respondent that the evidence is legally insufficient to sustain a finding that the complainant sustained a physical injury (see, People v Jimenez, 55 N.Y.2d 895, 896; People v Melcherts, 147 A.D.2d 594, lv denied 74 N.Y.2d 743). Consequently, the finding that respondent committed an act which, if committed by an adult would constitute assault in the third degree, must be vacated and the petition dismissed (see, Matter of Shawn B., 152 A.D.2d 733; Matter of Robin B., 78 A.D.2d 679). In view of this determination, it is not necessary to address respondent's remaining contentions.
Levine, J.P., Mercure, Mahoney, Casey and Harvey, JJ., concur. Ordered that the order is reversed, on the law, without costs, and petition dismissed.