MEMORANDUM.
In each case the order of the Appellate Division should be reversed and a new trial ordered.
A request was made to charge the jury on the lesser included offense of assault in the third degree. This request was refused by the court for the stated reason that the defendants conceded that the victim suffered serious physical injury.
While the court was correct in noting the defendants' concession with respect to the serious physical injury which the victim had in fact suffered, there was no concession that serious physical injury was the consequence which the defendants intended. Because the prosecution may have failed to prove the requisite intent to cause serious physical injury, and this lack of proof may have led the jury to convict defendants of assault in the lesser degree, the court erred in refusing the requested charge.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
In each case: order reversed, etc.