People v. Kay

17 A.D.2d 773, 232 N.Y.S.2d 293, 1962 N.Y. App. Div. LEXIS 7934

Opinion

Judgment convicting defendant of the crime of assault in the second degree (Penal Law, § 242, subd. 5), and sentencing him to imprisonment for a term not less than two years and six months nor more than three years unanimously modified on the law and the facts, by reducing the degree of crime of which appellant is convicted to assault in the third degree (Penal Law, § 244); and the sentence is modified to the extent of ordering that defendant be sentenced to serve an indefinite term in the New York City Penitentiary pursuant to the provisions of article 7-A of the Correction Law; and as so modified the judgment is affirmed. Any time spent by defendant in prison under the original sentence shall be deducted from and credited to the term of the sentence imposed herein. The evidence failed to establish the specific intent to commit a felony required under subdivision 5 of section 242 of the Penal Law, although it was sufficient to warrant a conviction for assault in the third degree. Consequently, under section 543 of the Code of Criminal Procedure, this court may modify and correct the judgment (see People v. May, 9 A D 2d 508). Concur — Rabin, J. P., Valente, McNally, Eager and Steuer, JJ.