The principal and novel question posed on this appeal is whether driving while intoxicated (DWI) as a felony (Vehicle and Traffic Law § 1192 [5]) may serve as the predicate for conviction of assault in the first degree under Penal Law § 120.10 (4). We hold that it may not.
The facts are not in dispute and may be stated briefly. At approximately 6:45 A.M. on December 7, 1984, defendant...
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