
    The People of the State of New York, Respondent, v Nathaniel Moss, Appellant.
   Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: Defendants appeal from a judgment of conviction of robbery in the first degree after a jury trial, contending that they were entitled to a jury instruction on attempt to commit robbery and on assault in the third degree as lesser included offenses (CPL 1.20, subd 37). On the facts in this case we hold that the court was in error in refusing so to instruct the jury. The record makes clear that Beaner and Moss assaulted the victim, Sullivan, with a stick and a knife. Sullivan testified, however, that he had been drinking and was "high” on nerve pills before the incident, blacked out afterwards, and could not recall the details with any accuracy. A number of people were crowding around the defendants and Sullivan in the melee, affording an opportunity for others to take the victim’s money. One witness testified that she observed defendants stealing Sullivan’s wallet but her testimony was contradicted by other witnesses. Counsel for both defendants made timely request for a charge on both lesser included offenses. In ruling on such request the court must view the evidence in the light most favorable to the defendants (People v Battle, 22 NY2d 323; People v Usher, 39 AD2d 459, mod 40 AD2d 1079, affd 34 NY2d 600), and determine thereby whether a reasonable view of the evidence would support a jury finding that defendants committed the lesser offense but not the greater (People v Asan, 22 NY2d 526; People v Smith, 47 AD2d 909; People v Cole, 43 AD2d 324), A reasonable view of the record in this case indicates that the jury could have properly found defendants guilty of assault in the third degree or of an attempt to commit a robbery but not of robbery. The denial of the request to charge on those lesser offenses was therefore error requiring reversal and a new trial. (Appeal from judgment of Erie Supreme Court—robbery, first degree.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Denman, JJ.  