STATE v. FERMIN

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the first degree and the sentence imposed thereon; as so modified, the judgment is affirmed, and a new trial is ordered on the charge of assault in the first degree, as charged in count two of indictment No. 720/03 as to the defendant.

The defendant correctly argues that the Supreme Court erred in refusing to charge the jury as to justification pursuant to Penal Law § 35.15 (2) with respect to the assault charge of which he was convicted under an acting in concert theory ( see People v Fermin, 36 AD3d 934 [decided herewith]). Contrary to the People's contention, the issue is preserved for appellate review ( see CPL 470.05; People v Edwards, 95 NY2d 486, 491 n 2 [2000]; People v Duncan, 111 AD2d 187, 191 [1992]).

Contrary to the defendant's contention, the defendant's guilt was proven by legally sufficient evidence.

In view of our determination, we do not reach the defendant's remaining contentions.