
    The People of the State of New York, Respondent, v Eliezer Balay, Appellant.
   Judgment, Supreme Court, New York County, rendered April 1, 1974, convicting defendant, after trial, of the crimes of assault in the first and second degrees and felonious possession of a weapon, unanimously modified, on the law, to the extent of reversing the conviction for assault in the second degree and remanding for a new trial on that one count of the indictment, and, as so modified, the judgment is affirmed. The trial court erred in failing to charge the lesser included offense of assault in the third degree which related to the beating of Torres. The People concede that "the requested charge of assault in the third degree is a lesser included offense of assault in the second degree as charged here”. The fact that the court asked defense counsel to submit requests to charge prior to the commencement of the main charge, did not justify the rejection of the request to charge assault in the third degree, which request was made before the jury retired. Concur—Stevens, P. J., Murphy, Lupiano, Capozzoli and Nunez, JJ.  