In an indictment, filed April 18, 1980, defendant was charged with two counts of robbery in the second degree (Penal Law, § 160.10). At the request of defense trial counsel, the trial court instructed the jury that the crime of assault in the third degree was a lesser included offense of the crime of robbery in the second degree. Commendably, the People concede that the trial court erred in its instruction since "assault in the third degree is not a `lesser included...
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