People v. Dickerson

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 was a factual issue- for the jury to determine, the court necessarily concluded that there was a reasonable view of the evidence that it…