—[*1] Steven Banks, The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell, New York (Namita Wahi of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered July 8, 2005, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of 60 days, concurrent with three years' probation, unanimously modified, on the law, to reduce the conviction to attempted assault in the third degree and to reduce the sentence to time served with one year of probation, and otherwise affirmed.

The element of physical injury was not established by sufficient evidence. Defendant's argument on appeal that his intent was not established due to his voluntary intoxication is unpreserved, and, in any event, meritless as the jury could have found that defendant's intoxication was not at such a level as to negate his intent. Concur—Mazzarelli, J.P., Marlow, Buckley and Malone, JJ.