
    The People of the State of New York, Respondent, v. Cosmo Simone, Alias Gus Simone, Appellant.
   Defendant appeals from a judgment of the County Court of Nassau County convicting him of assault in the second degree and assault in the third degree and the sentence imposed thereunder, and also from orders denying the arrest of judgment and a new trial. Judgment reversed on-the law and a new trial ordered. Appeal from orders dismissed. It was error to charge the jury that an attempt to use an instrument likely to produce grievous bodily injury constituted an assault in the second degree. It was for the jury to say whether, under the circumstances which they found to exist, an attempt to use the pipe or its use was with specific felonious intent to produce grievous bodily injury and constituted an assault in the second degree, or whether even if there was an attempt to use or actual use of the pipe there was assault in the third degree, or that no assault was established. We have also considered the other alleged errors, but they probably will not arise on the new trial. The findings of fact implicit in the verdict of the jury are affirmed. Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.  