
    The People of the State of New York, Respondent, v Charles Brunner, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 18,1978, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of assault in the first degree to one of assault in the second degree, and by vacating the sentence imposed thereon. As so modified, judgment affirmed and case remitted to Criminal Term for resentence in accordance herewith. Section 120.10 of the Penal Law provides: "A person is guilty of assault in the first degree when: * * * 2. With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person”. Although the assault here was particularly vicious, the proof was insufficient to bring the crime within the purview of assault in the first degree. We hold, however, that the facts established that defendant intended to cause serious physical injury to the victim, thus warranting a conviction of the lesser included offense of assault in the second degree (see Penal Law, § 120.05, subd 1; CPL 470.15, subd 2). Gulotta, J. P., Cohalan, Martuscello and Gibbons, JJ., concur.  