Judgment unanimously modified on the law by reversing defendant's conviction of assault in the second degree and granting a new trial thereon and as modified affirmed.
Memorandum:
The court erred in refusing to charge assault in the third degree as a lesser included offense of assault in the second degree. Because the court charged, with respect to assault in the second degree (Penal Law § 120.05 [2]), that whether the baseball bat was a dangerous instrument...
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