The People of the State of New York, Respondent, v Silva Swinton, Appellant.

Decided July 6, 2006

People v Swinton (Joseph), 21 AD3d 1039, modified.

People v Swinton (Silva), 21 AD3d 1039, modified.

APPEARANCES OF COUNSEL

Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for Joseph Swinton, appellant.

Kevin Costello, Flushing, for Silva Swinton, appellant.

Richard A. Brown, District Attorney, Kew Gardens (Linda Cantoni of counsel), for respondent.

Memorandum.

The order of the Appellate Division should be modified by reducing defendants' convictions for assault in the first degree to assault in the third degree and remitting to Supreme [*2]Court for resentencing and, as so modified, affirmed. Viewing the evidence in the light most favorable to the People, the evidence is legally insufficient to prove beyond a reasonable doubt that defendants acted with the culpable mental state of depraved indifference (People v Feingold, 7 NY3d 288 [2006]). The evidence is legally sufficient, however, to support the jury's determination that defendants acted recklessly.

Judges G.B. Smith, Rosenblatt, Read and R.S. Smith concur in memorandum; Chief Judge Kaye and Judges Ciparick and Graffeo concur in result on constraint of People v Feingold (7 NY3d 288 [2006]).

In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.