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ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23

 

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