— Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered April 6, 1983, upon a verdict convicting defendant of the crimes of assault in the first degree and assault in the second degree.
On December 7,1982, defendant was indicted on two counts of assault in the first degree and a third count of reckless endangerment in the first degree, stemming from an altercation with one Donald Shufelt outside a bar in the City of Albany. It is alleged that defendant either intentionally or recklessly struck the victim’s head against the concrete sidewalk, causing serious physical injury. On the first count of intentional assault (Penal Law, § 120.10, subd 1), the trial court agreed to charge assault in the second degree (Penal Law, § 120.05, subd 2) as a lesser included offense, but refused defendant’s request to also charge assault in the third degree (Penal Law, § 120.00). As to the second count of reckless assault (Penal Law, § 120.10, subd 3), the court again refused defendant’s request to charge assault in the third degree as a lesser included offense, but did agree to charge assault in the second degree (Penal Law, § 120.05, subd 4). The court refused to charge the third count of the indictment, reckless endangerment in the first degree (Penal Law, § 120.25), despite defendant’s objection. The jury found defendant guilty of assault in the first degree (Penal Law, § 120.10, subd 1) on the first count and assault in the second degree (Penal Law, § 120.05, subd 4) on the second count. Defendant was sentenced to concurrent indeterminate terms of imprisonment of 5 to 15 years on the first count and 2Vs to 7 years on the second count. This appeal ensued.
While there are several issues raised on this appeal, we focus our attention on the propriety of the trial court’s charge. As to the first count, defendant asserts that the trial court committed reversible error in refusing to charge assault in the third degree as a lesser included offense (CPL 300.50, subd 1). We agree. It is not disputed that assault in the third degree is a lesser included offense of the charged crimes of assault in the first and second degrees (Penal Law, § 120.10, subd 1; § 120.05, subd 2) under the first tier of the two-tier test set forth in People v Glover (57 NY2d 61) for submission of a lesser included offense to the jury (People v Price, 99 AD2d 878; People v Fugaro, 96 AD2d 659). One of the aggravating features of the offenses charged under the first count of the indictment is that the concrete sidewalk constituted [528] a dangerous instrument. Turning to the second tier of the Glover test, the issue resolves to whether a reasonable view of the evidence would support a determination that defendant did not utilize the sidewalk as a dangerous instrument to inflict injury, but that Shufelt was nonetheless injured when his head struck the sidewalk during the struggle, i.e., that defendant committed the lesser offense of third degree assault but not one of the greater offenses charged. The record contains contrasting testimony as to whether defendant intentionally struck Shufelt’s head against the sidewalk. One prosecution witness testified •that he observed defendant hold Shufelt by the hair and bang his head against the sidewalk. A second prosecution witness observed defendant jump onto the victim, who then fell to the ground striking his head face first. This witness further observed defendant holding Shufelt by the head and shaking him, but could not confirm whether the victim’s head was striking the sidewalk. A third prosecution witness testified on cross-examination that he observed defendant and Shufelt wrestling, but did not see defendant pound the victim’s head on the sidewalk. A defense witness similarly testified that he observed the struggle but never saw defendant strike Shufelt’s head on the pavement.
In assessing whether to submit a lesser included offense to the jury, the evidence must be viewed in a light most favorable to defendant, with a recognition that the jury is free to accept or reject all or part of the evidence presented (People v Henderson, 41 NY2d 233, 236). Our inquiry is not whether persuasive evidence of guilt of the higher crime exists, but whether a jury could reasonably acquit defendant on the higher count (People v Green, 56 NY2d 427, 434; People v Shuman, 37 NY2d 302, 304). From the testimony presented, the jury may very well have determined that Shufelt’s injuries emanated from falling on the pavement during the course of the struggle, and not as a result of defendant’s affirmative acts of striking the victim’s head against the sidewalk (see People v Battle, 22 NY2d 323; People v Fugaro, 96 AD2d 659, supra). As such, we conclude that the trial court erred in refusing to charge assault in the third degree as requested (see People v Green, supra, pp 434-435). Since we do not consider this error as harmless, a new trial is required with respect to the first count of the indictment.
As to the second count of the indictment, we further conclude that the trial court erred in refusing defendant’s request to charge assault'in the third degree as a lesser included offense. By reasoning consonant with the above discussion of count one, the evidence was such that the jury could have concluded that defendant recklessly inflicted physical injury upon Shufelt, but [529] not under circumstances reflecting a depraved indifference to human life, in a manner such as to create a grave risk of death. Given this possibility and the absence of a “dangerous instrument” element under count two, the next available lesser included offense is assault in the third degree (Penal Law, § 120.00, subd 2). Since a reasonable view of the evidence would sustain a conclusion that defendant acted recklessly, and not under the higher degree of “depraved indifference” necessary to satisfy the requirements of assault in the first degree (Penal Law, § 120.10, subd 3), the trial court was required to charge assault in the third degree as requested and the failure to do so necessitates a new trial. We recognize that since defendant was acquitted on assault in the first degree as charged in count two, nothing remains to support further prosecution under that count of the indictment. These circumstances prevailing, the judgment convicting defendant of assault in the second degree should be dismissed, with leave to the People to re-present any appropriate charges to another Grand Jury (see People v Gonzalez, 61 NY2d 633; see People v Reome, 101 AD2d 632; People v Lee, 100 AD2d 357). In so deciding, we note that further prosecution on the first degree assault charge (Penal Law, § 120.10, subd 3) is barred on ground of double jeopardy.
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— Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered April 6, 1983, upon a verdict convicting defendant of the crimes of assault in the first degree and assault in the second degree.
On December 7,1982, defendant was indicted on two counts of assault in the first degree and a third count of reckless endangerment in the first degree, stemming from an altercation with one Donald Shufelt outside a bar in the City of Albany. It is alleged that defendant either intentionally or recklessly struck the victim’s head against the concrete sidewalk, causing serious physical injury. On the first count of intentional assault (Penal Law, § 120.10, subd 1), the trial court agreed to charge assault in the second degree (Penal Law, § 120.05, subd 2) as a lesser included offense, but refused defendant’s request to also charge assault in the third degree (Penal Law, § 120.00). As to the second count of reckless assault (Penal Law, § 120.10, subd 3), the court again refused defendant’s request to charge assault in the third degree as a lesser included offense, but did agree to charge assault in the second degree (Penal Law, § 120.05, subd 4). The court refused to charge the third count of the indictment, reckless endangerment in the first degree (Penal Law, § 120.25), despite defendant’s objection. The jury found defendant guilty of assault in the first degree (Penal Law, § 120.10, subd 1) on the first count and assault in the second degree (Penal Law, § 120.05, subd 4) on the second count. Defendant was sentenced to concurrent indeterminate terms of imprisonment of 5 to 15 years on the first count and 2Vs to 7 years on the second count. This appeal ensued.
While there are several issues raised on this appeal, we focus our attention on the propriety of the trial court’s charge. As to the first count, defendant asserts that the trial court committed reversible error in refusing to charge assault in the third degree as a lesser included offense (CPL 300.50, subd 1). We agree. It is not disputed that assault in the third degree is a lesser included offense of the charged crimes of assault in the first and second degrees (Penal Law, § 120.10, subd 1; § 120.05, subd 2) under the first tier of the two-tier test set forth in People v Glover (57 NY2d 61) for submission of a lesser included offense to the jury (People v Price, 99 AD2d 878; People v Fugaro, 96 AD2d 659). One of the aggravating features of the offenses charged under the first count of the indictment is that the concrete sidewalk constituted [528] a dangerous instrument. Turning to the second tier of the Glover test, the issue resolves to whether a reasonable view of the evidence would support a determination that defendant did not utilize the sidewalk as a dangerous instrument to inflict injury, but that Shufelt was nonetheless injured when his head struck the sidewalk during the struggle, i.e., that defendant committed the lesser offense of third degree assault but not one of the greater offenses charged. The record contains contrasting testimony as to whether defendant intentionally struck Shufelt’s head against the sidewalk. One prosecution witness testified •that he observed defendant hold Shufelt by the hair and bang his head against the sidewalk. A second prosecution witness observed defendant jump onto the victim, who then fell to the ground striking his head face first. This witness further observed defendant holding Shufelt by the head and shaking him, but could not confirm whether the victim’s head was striking the sidewalk. A third prosecution witness testified on cross-examination that he observed defendant and Shufelt wrestling, but did not see defendant pound the victim’s head on the sidewalk. A defense witness similarly testified that he observed the struggle but never saw defendant strike Shufelt’s head on the pavement.
In assessing whether to submit a lesser included offense to the jury, the evidence must be viewed in a light most favorable to defendant, with a recognition that the jury is free to accept or reject all or part of the evidence presented (People v Henderson, 41 NY2d 233, 236). Our inquiry is not whether persuasive evidence of guilt of the higher crime exists, but whether a jury could reasonably acquit defendant on the higher count (People v Green, 56 NY2d 427, 434; People v Shuman, 37 NY2d 302, 304). From the testimony presented, the jury may very well have determined that Shufelt’s injuries emanated from falling on the pavement during the course of the struggle, and not as a result of defendant’s affirmative acts of striking the victim’s head against the sidewalk (see People v Battle, 22 NY2d 323; People v Fugaro, 96 AD2d 659, supra). As such, we conclude that the trial court erred in refusing to charge assault in the third degree as requested (see People v Green, supra, pp 434-435). Since we do not consider this error as harmless, a new trial is required with respect to the first count of the indictment.
As to the second count of the indictment, we further conclude that the trial court erred in refusing defendant’s request to charge assault'in the third degree as a lesser included offense. By reasoning consonant with the above discussion of count one, the evidence was such that the jury could have concluded that defendant recklessly inflicted physical injury upon Shufelt, but [529] not under circumstances reflecting a depraved indifference to human life, in a manner such as to create a grave risk of death. Given this possibility and the absence of a “dangerous instrument” element under count two, the next available lesser included offense is assault in the third degree (Penal Law, § 120.00, subd 2). Since a reasonable view of the evidence would sustain a conclusion that defendant acted recklessly, and not under the higher degree of “depraved indifference” necessary to satisfy the requirements of assault in the first degree (Penal Law, § 120.10, subd 3), the trial court was required to charge assault in the third degree as requested and the failure to do so necessitates a new trial. We recognize that since defendant was acquitted on assault in the first degree as charged in count two, nothing remains to support further prosecution under that count of the indictment. These circumstances prevailing, the judgment convicting defendant of assault in the second degree should be dismissed, with leave to the People to re-present any appropriate charges to another Grand Jury (see People v Gonzalez, 61 NY2d 633; see People v Reome, 101 AD2d 632; People v Lee, 100 AD2d 357). In so deciding, we note that further prosecution on the first degree assault charge (Penal Law, § 120.10, subd 3) is barred on ground of double jeopardy.
Except for a brief discussion of the trial court’s Sandoval ruling, which defendant asserts deprived him of a fair trial, we deem it unnecessary to discuss defendant’s remaining contentions of error. Following a Sandoval hearing, the trial court ruled that the prosecution could inquire into the underlying facts but not the conviction of a 1976 assault for which defendant was adjudicated a youthful offender, and two prior convictions for driving while intoxicated stemming from arrests on September 29, 1982 and on October 24, 1982. The trial court excluded inquiry into a disorderly conduct conviction in July of 1980. Defendant elected not to testify. Defendant contends that the DWI convictions are more indicative of an alcohol problem than probative of his credibility. Despite defendant’s attempt to minimize these convictions as traffic violations, they are misdemeanors which emanated from events in close proximity in time to the present incident and certainly suggestive of a readiness to advance defendant’s self-interest against those of society. Thus, these two convictions were properly allowed for impeachment purposes. Upon review of the minutes of the Sandoval hearing, we further conclude that the trial court properly exercised its discretion in authorizing inquiry into the underlying facts of the assault conviction (see People v Bennette, 56 NY2d 142; People v Dodt, 92 AD2d 1063, 1066, revd on other grounds 61 NY2d 408). [530] The trial court reasoned that the prior assault was indicative of defendant’s willingness “to elevate his own personal, private interests over that of society”, and balanced the probative value of the incident against the risk of unfair prejudice to defendant (People v Pavao, 59 NY2d 282, 291-292). Nor was the prior assault so remote in time as to be without relevance. Accordingly, we find no abuse of discretion in the trial court’s Sandoval ruling.
Judgment reversed, on the law, and matter remitted to County Court of Albany County for a new trial on the first count of the indictment; the second count of the indictment is dismissed, with leave to the People to re-present any appropriate charge relating thereto to another Grand Jury. Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.