Opinion
February 4, 1960
Appeal from the Oswego County Court.
Present — Bastow, J.P., Goldman, Halpern, McClusky and Henry, JJ.
Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Appeal from order dismissed as academic. Memorandum: The trial court erred in failing to charge assault, third degree, and we, in the exercise of proper discretion, think it should have been done despite the failure of defendant's assigned counsel to so request. In view of the evidence of defendant's intoxication, the jury, under appropriate instructions, might have found that the element of intent referred to in section 242 of the Penal Law was not present but that there was guilt of third degree assault, nevertheless. It is not clear from the record whether the additional sentence under section 1944 of the Penal Law was imposed by the trial court in the exercise of discretion, or by a determination that such sentence was mandatory under the law. If the question arises upon retrial, sentence under the section should be imposed or not imposed as a matter of discretion.