WILLIAM F. MASTRO
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure and Jessica M. McNamara of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered February 18, 2010, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for sentencing on the conviction of attempted assault in the first degree.
The defendant's contention that the evidence was legally insufficient to support his conviction of assault in the first degree is unpreserved for appellate review ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). However, upon reviewing this contention in the interest of justice ( seeCPL 470.10[2]; People v. Wingate, 70 A.D.3d 734, 892 N.Y.S.2d 867; People v. Gilford, 65 A.D.3d 840, 841, 884 N.Y.S.2d 731, affd.16 N.Y.3d 864, 924 N.Y.S.2d 314, 948 N.E.2d 920), we find that the evidence, viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), was legally insufficient to establish the defendant's guilt of assault in the first degree because the complainant did not suffer a “serious physical injury” as a result of the attack by the defendant (Penal Law §§ 120.10[1]; 10.00[10]; see People v. Ham, 67 A.D.3d 1038, 1039–1040, 889 N.Y.S.2d 110; People v. Gilford, 65 A.D.3d at 841, 884 N.Y.S.2d 731; People v. Clark, 42 A.D.3d 957, 958, 838 N.Y.S.2d 760; People v. Gray, 30 A.D.3d 771, 772–773, 816 N.Y.S.2d 609). The prosecution failed to demonstrate beyond a reasonable doubt either that the complainant suffered serious and protracted disfigurement ( see People v. Stewart, 18 N.Y.3d 831, 939 N.Y.S.2d 273, 962 N.E.2d 764; People v. McKinnon, 15 N.Y.3d 311, 910 N.Y.S.2d 767, 937 N.E.2d 524), or that a pulmonary embolism which she experienced subsequent to the incident was caused by the defendant's actions. Nevertheless, the evidence presented at trial established beyond a reasonable doubt that the defendant, who threatened to kill the complainant and who stabbed and slashed her repeatedly with a knife until she lost consciousness, acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crime (People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694; see People v. Mazariego, 117 A.D.3d 1082, 986 N.Y.S.2d 235). Accordingly, we modify the judgment by reducing the defendant's conviction of assault in the first degree to attempted assault in the first degree, and we remit the matter to the Supreme Court for sentencing on the conviction of attempted assault in the first degree ( see People v. Madera, 103 A.D.3d 1197, 1198–1199, 959 N.Y.S.2d 337; People v. Brown, 100 A.D.3d 1035, 1036, 952 N.Y.S.2d 828; People v. Serrano, 74 A.D.3d 1104, 1106, 904 N.Y.S.2d 711).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “ ‘mixed claim [ ]’ ” of ineffective assistance (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386, quoting People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel ( cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815; People v. Brown, 45 N.Y.2d 852, 853–854, 410 N.Y.S.2d 287, 382 N.E.2d 1149). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety ( see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386).