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,
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 (
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.