Judgment unanimously modified on the law and as modified affirmed and new trial granted on count one of the indictment, in accordance with the following memorandum:
The indictment charges defendant with one count of assault in the second degree (Penal Law § 120.05 [2]) and one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). It is alleged that defendant twice struck the victim with a "billy". At trial, the jury rejected...
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