
    [853 NE2d 1105, 820 NYS2d 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.
    Decided July 6, 2006
    
      APPEARANCES OF COUNSEL
    
      Appellate Advocates, New York City CLynn 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.
   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 depraved indifference (People v Feingold, 7 NY3d 288 [2006]). The evidence is legally sufficient, however, to support the jury’s determination that defendants acted recklessly.

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 People v Feingold (7 NY3d 288 [2006]).

In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.  