People v. Lynch

265 A.D.2d 505, 696 N.Y.S.2d 861, 1999 N.Y. App. Div. LEXIS 10619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1999
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Giaccio, J.), rendered July 21, 1998, convicting him of assault in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction of assault in the second degree to assault in the third degree, and vacating the sentence imposed on the conviction of assault in the second degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of assault in the third degree.

The defendant argues, and the People correctly concede on appeal, that the evidence was legally insufficient to sustain the judgment as to the count of the indictment charging assault in the second degree (see, Penal Law § 120:05 [2]; § 10.00 [12]). Accordingly, the conviction of assault in the second degree cannot stand. However, as both parties correctly contend, the evidence presented was legally sufficient to establish the crime of assault in the third degree (see, Penal Law § 120.00 [1]).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Joy, J. P., Friedmann, Schmidt and Smith, JJ., concur.