In this consolidated trial of two indictments, in order to convict defendant of burglary in the first degree under Penal Law § 140.30 (2), robbery in the second degree under Penal Law § 160.10 (2) (a) and assault in the second degree under Penal Law § 120.05 (6), all of which relate to the Holmes incident, the People were required to prove that the victim suffered a "physical injury", i.e., an "impairment of physical condition or substantial pain" (Penal Law § 10.00). Viewing the evidence in the light most favorable to the People, as we must (People v Contes, 60 N.Y.2d 620), we find that the proof demonstrated no more than a purely subjective claim of pain, which is legally insufficient, as a matter of law, to establish physical injury. (See, Matter of Philip A., 49 N.Y.2d 198, 200.) In that regard, Ms. Holmes, 80 years of age, testified that during the course of the incident she struggled with defendant and "bumped" her head as he was "trying to get into the drawer." Although her body was sore for about three weeks and her head swollen, she did not see a doctor or go to the hospital. Ms. Holmes treated herself by bathing her face with cold water. No residual effects of her injuries were apparent at the time of trial. Such evidence provides too scant a basis upon which to predicate a finding of substantial pain or physical impairment (see, e.g., People v Hargrove, 95 A.D.2d 864), and we modify accordingly. We reject the People's argument that defendant failed to preserve the legal insufficiency argument.
We have reviewed defendant's other contentions and find that they are without merit.
Concur — Murphy, P.J., Kupferman, Sullivan, Ross and Smith, JJ.