People v. Scahill

Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was convicted of assault in the second degree. On appeal, he argues that the court erred by refusing his request to charge both reckless and negligent assault in the third degree as lesser included offenses. We agree. Assault in the third degree under either of these theories is a proper lesser included offense of assault in the second degree (People v Fasano, 107 AD2d 1052, 1053). Here, the evidence, when viewed in the light most favorable to defendant (see, People v Martin, 59 NY2d 704, 705), could support…