
    The People of the State of New York, Respondent, v Eddie Colon, Appellant.
   Judgment, Supreme Court, New

York County (Albert P. Williams, J., and a jury), rendered September 27, 1984, convicting defendant of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to concurrent terms of imprisonment of to 5 years on the assault count and one year on the weapon possession count, unanimously reversed, on the law, and the case remanded for a new trial.

The defendant was convicted after a jury trial of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01) and sentenced to concurrent terms of imprisonment of 2Vz to 5 years on the assault count and one year on the weapon possession count.

The evidence satisfactorily established that the defendant, a guard in a movie theatre, struck a patron in the theatre twice on the head with a flashlight as a result of an altercation developing out of the patron’s refusal to obey instructions to remove his feet from a seat in the theatre.

As the People candidly acknowledge, however, a factual issue was presented for the jury as to whether the flashlight constituted a dangerous instrument under the circumstances in which it is used. (See, Penal Law § 10.00 [13].) Accordingly, the trial court erred in refusing defendant’s request to submit the lesser included offense of assault in the third degree under Penal Law § 120.00 (1). This error also clearly affected the defendant’s conviction for possession of a dangerous instrument. As the People acknowledge, the matter must accordingly be remanded for a new trial. Concur — Kupferman, J. P., Sandler, Fein, Rosenberger and Wallach, JJ.  