People v. Lindsey

The defendant, charged with assault in the second degree (Penal Law, § 242, subds. 3, 4), was convicted of third degree assault (Penal Law, § 244, subd. 1), following the court’s instruction to the jury that it might return such a verdict. Belying on the principle stated in People v. Mussenden (308 N. Y. 558), he seeks a reversal on the ground that the evidence permitted the jury to return a verdict of guilt of second degree assault but not one of simple assault. If the defendant were correct, we would be required to reverse and direct a new trial. However, analysis of the record before us…