Opinion
October 2, 1989
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of assault in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
We agree with the defendant's contention that the evidence, viewed in the light most favorable to the prosecution (People v Contes, 60 N.Y.2d 620), was legally insufficient to sustain his conviction for assault in the first degree (see, People v Pollard, 150 A.D.2d 397). Accordingly, that conviction must be reversed and that count of the indictment dismissed.
The defendant further contends that the court erred in denying his motion for a mistrial on the ground of juror misconduct. We considered and rejected that issue upon the appeal of his codefendant (see, People v Pollard, supra). The defendant has not raised any arguments requiring a different result.
We have examined the remaining contentions advanced by the defendant and find them to be without merit. Eiber, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.