Judgment unanimously affirmed.
Memorandum:
Defendant's primary contention on appeal is that the trial court erred in refusing to charge assault in the third degree (Penal Law § 120.00 [2]) as a lesser included offense of assault in the second degree (Penal Law § 120.05 [7]). Assault in the third degree (Penal Law § 120.00 [2]) can theoretically be a lesser included offense of assault in the second degree (Penal Law § 120.05 [7]; see...
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