Judgment reversed, on the law, and new trial ordered. Defendant was indicted, inter alia, for assault in the first degree.
He was convicted, following a jury trial, of two counts of assault in the second degree. We are of the view, under the facts of this case, that he was entitled to a jury instruction as to the crime of assault in the third degree as a lesser included offense (CPL 1.20, subd 37). Defense counsel's timely request for such an instruction was...
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