PEOPLE v. MOODY

Defendant appeals from a judgment of the Supreme Court, Richmond County, rendered January 18, 1973, convicting him of assault in the second degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, and new trial ordered as to the charge of assault in the second degree. As candidly conceded by the District Attorney in his brief, the failure of the trial court to inform counsel, prior to summation, that it intended to consider assault in the second degree as a lesser included offense was reversible error necessitating a new trial as to that charge (see People v Jack, NYLJ, Dec. 18, 1975, p 13, col 4). Hopkins, Acting P.J., Latham, Cohalan, Margett and Hawkins, JJ., concur.