
    The People of the State of New York, Respondent, v Evaristo Jardin, Appellant.
   Judgment, Supreme Court, Bronx County, rendered December 2, 1975, unanimously modified, on the law, to the extent of reversing the conviction on the count of murder, second degree, and the case remanded to Trial Term, Bronx County, for a new trial on that count and otherwise affirmed. There is no doubt from this record that, after some vacillation and change of position, defendant-appellant’s counsel as well as the prosecutor both requested the court to charge manslaughter, first degree, as a lesser included count. The circumstances of the fatal shooting of a motorist involved in a postcollision fistfight with defendant were such as to permit of a reasonable view of the evidence to the effect that defendant’s intent in shooting was not to kill, but to injure. Defendant was entitled to the benefit of this instruction, and it was error to refuse it. (See CPL 300.50 [subd 2].) Concur—Evans, J. P., Fein, Lane, Markewich and Yesawich, JJ.  