Opinion
June 3, 1986
Appeal from the Supreme Court, New York County, Albert P. Williams, J.
The defendant was convicted after a jury trial of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01) and sentenced to concurrent terms of imprisonment of 2 1/2 to 5 years on the assault count and one year on the weapon possession count.
The evidence satisfactorily established that the defendant, a guard in a movie theatre, struck a patron in the theatre twice on the head with a flashlight as a result of an altercation developing out of the patron's refusal to obey instructions to remove his feet from a seat in the theatre.
As the People candidly acknowledge, however, a factual issue was presented for the jury as to whether the flashlight constituted a dangerous instrument under the circumstances in which it is used. (See, Penal Law § 10.00.) Accordingly, the trial court erred in refusing defendant's request to submit the lesser included offense of assault in the third degree under Penal Law § 120.00 (1). This error also clearly affected the defendant's conviction for possession of a dangerous instrument. As the People acknowledge, the matter must accordingly be remanded for a new trial.
Concur — Kupferman, J.P., Sandler, Fein, Rosenberger and Wallach, JJ.