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PEOPLE v. SWINTON

7 N.Y.3d 776 (2006)

853 N.E.2d 1105

820 N.Y.S.2d 537

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH SWINTON, Appellant. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SILVA SWINTON, Appellant.

Court of Appeals of New York.

Decided July 6, 2006.

Attorney(s) appearing for the Case

Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for Joseph Swinton, appellant.

Kevin Costello, Flushing, for Silva Swinton, appellant.

Richard A. Brown, District Attorney, Kew Gardens (Linda Cantoni of counsel), for respondent.

Judges G.B. SMITH, ROSENBLATT, READ and R.S. SMITH concur in memorandum; Chief Judge KAYE and Judges CIPARICK and GRAFFEO concur in result on constraint of ( [2006]).

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...

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