Judgment unanimously reversed, on the law and facts, and new trial granted.
Memorandum:
The jury convicted defendant of assault in the second degree (Penal Law, § 120.05, subd 2) as charged in the indictment. At trial, defendant requested that assault in the third degree, under subdivision 3 of section 120.00 of the Penal Law, be charged as a lesser included offense. The trial court erroneously denied the request, and we reverse.
The evidence...
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