People v. Swinton

OPINION OF THE COURT

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 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…