People v. Parmaklidis

48 A.D.2d 842, 368 N.Y.S.2d 565, 1975 N.Y. App. Div. LEXIS 10059

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 27, 1972, convicting him of attempted murder and robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of attempted murder to a conviction of assault in the first degree. As so modified, judgment affirmed. The proof adduced at the trial failed to establish the elements of attempted murder, but did fall within the purview of assault in the first degree in that "With intent to cause serious physical injury to another person” defendant did cause "such injury to such person * * * by means of * * * a dangerous instrument” (Penal Law, § 120.10, subd 1). There is no need to remand for resentence since the term of incarceration meted out was within the maximum period of 15 years, as is provided by law for a Class C felony (Penal Law § 70.00, subd 2, par [c]). We have examined the other claims of error advanced by appellant and find them to be without merit. Hopkins, Acting P. J., Martuscello, Cohalan, Brennan and Shapiro, JJ., concur.