People v. Klosis

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 5, 1973, convicting him of assault in the second degree, upon a jury verdict, and sentencing him to five years’ probation. Judgment modified as to the conviction, on the law and the facts, by changing the conviction to one of assault in the third degree; as so modified, judgment as to the conviction affirmed; judgment reversed as to the sentence, on the law; and case remanded to the trial court for resentencing. We find no proof in the record to support the verdict of guilty on the seventh count of the indictment charging appellant with having committed assault in the second degree by intentionally inflicting physical injury upon the complainant by means of a dangerous instrument (Penal Law, § 120.05, subd 2). Nevertheless, there was sufficient proof as a matter of law to sustain a verdict of guilty for the lesser included offense of assault in the *706third degree (Penal Law, § 120.00, subd 1). We modify the conviction accordingly (CPL 470.15, subd 2, par [a]) and remand the case to the trial court for resentencing. Gulotta, P. J., Hopkins, Martuscello, Latham and Christ, JJ., concur.