| People v Swinton |
| 2006 NY Slip Op 05240 |
| Decided on July 6, 2006 |
| Court of Appeals |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 6, 2006
No. 159 SSM 12
v
Joseph Swinton, Appellant.
——
2 No. 158 SSM 13
The People & c., Respondent,
v
Silva Swinton, Appellant.
Case No. 159 SSM 12: Submitted by Lynn W. L. Fahey, for appellant.
Submitted by Linda Cantoni, for respondent.
Case No. 158 SSM 13: Submitted by Kevin Costello, for appellant. Submitted by Linda Cantoni, 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 [___ NY3d ___ [2006] [decided July 5, 2006]). The evidence is legally sufficient, however, to support the jury's determination that defendants acted recklessly.
* * * * * * * * * * * * * * * * *
In each case: On review of submissions pursuant to section 500.11 of the Rules, order modified by reducing defendant's conviction of assault in the first degree to assault in the third degree and remitting to Supreme Court, Queens County, for resentencing and, as so modified, affirmed, in a memorandum. Judges G.B. Smith, Rosenblatt, Read and R.S. Smith concur. Chief Judge Kaye and Judges Ciparick and Graffeo concur in result on constraint of People v. Feingold (___ NY3d ___ [2006] [decided July 5, 2006]).
Decided July 6, 2006