47 A.D.2d 909 | N.Y. App. Div. | 1975
Appeal by defendant from a judgment of the County Court, Nassau County, rendered February 15, 1974, convicting him of assault in the second degree (two counts) and possession of weapons, dangerous instruments and applicances as a misdemeanor, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was indicted, inter alla, for assault in the first degree. He was convicted, following a jury trial, of two counts of assault in the second degree. We are of the view, under the facts of this case, that he was entitled to a jury instruction as to the crime of assault in the -third - degree, as. a lesser included offense (CPL 1.20, subd 37). Defense counsel’s timely request for such an instruction was improperly denied. In ruling on a request for a jury charge as to a lesser included offense, the evidence must be viewed in the light most favorable to the defendant. Upon such a view, the trial court must determine whether the evidence would reasonably support a finding that the defendant committed the lesser offense but not the greater (People v Asan, 22 NY2d 526, 529-530; People v Mussenden, 308 NY 558, 561-562; People v Cole, 43 AD2d 324, 326; CPL 300.50, subd 1). If the evidence offers such support, the defendant must have the benefit of the charge as to the