#### The People of the State of New York, Respondent, v Joequell E. Solomon, Appellant.

[946 NYS2d 348]

*1397Appeal from a judgment of the Ontario County Court (William E Kocher, J.), rendered July 20, 2010. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and criminal possession of a weapon in the fourth degree.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]), as a lesser included offense of the first count of the indictment charging him with assault in the first degree (§ 120.10 [1]), and criminal possession of a weapon in the fourth degree (§ 265.01 [2]). Contrary to defendant’s contention, County Court properly denied his request to charge the jury on assault in the third degree (§ 120.00 [3]) as a lesser included offense of assault in the first degree. “There was no reasonable view of the evidence presented that would support a jury finding that the defendant acted with criminal negligence rather than [acted intentionally]” *(People v*Beckford, 49 AD3d 547, 548 [2008], *lv denied*10 NY3d 859 [2008]; *see People v Wright,*105 AD2d 1088, 1089 [1984]; *see generally*CPL 300.50 [1]). Further, we reject defendant’s contention that the count charging criminal possession of a weapon in the fourth degree was an inclusory concurrent count of assault in the first degree *(see People v Mitchell,*216 AD2d 863 [1995], *lv denied*86 NY2d 798 [1995]; *People v Sykes,*194 AD2d 502 [1993], *lv denied*82 NY2d 759 [1993]; *see generally*CPL 300.30 [4]; *People v Perez,*45 NY2d 204, 208-210 [1978]).

We agree with defendant, however, that the court erred in charging the jury that the victim of the assault was justified to use physical force “to the extent that he . . . reasonably believe [d] such to be necessary to prevent or terminate what he . . . reasonably believe[d] to be the commission ... of larceny” (Penal Law § 35.25). “ ‘It is a fundamental rule of law that jury instructions are required to be responsive to the issues presented by the evidence’ ” *(People v Lewis,*160 AD2d 815, 816 [1990], *lv dismissed*76 NY2d 738 [1990]; *see generally*CPL 300.10 [2]), and it is error for the court to submit to the jury “ ‘a theory of the facts which had no foundation in the evidence’ ” *(People v Rosenberg,*293 NY 16, 17 [1944], *rearg denied*293 NY 697 [1944], quoting *People v Barberi,*149 NY 256, 274 [1896]; *see People v Duncan,*46 NY2d 74, 79 [1978], *rearg denied*46 NY2d 940 [1979], *cert denied*442 US 910 [1979], *rearg dismissed*56 NY2d 646 [1982]). We conclude that the court’s *1398justification charge was not responsive to the evidence because there is no view thereof that the *victim*was justified in using physical force against defendant or that the *victim*used such force in the first instance *(cf. People v Banks, 2*AD3d 226 [2003], *lv denied 2*NY3d 737 [2004]; *see generally*Penal Law art 35). Under the circumstances of this case, we agree with defendant that the patently improper instruction was so prejudicial as to deny him a fair trial (see *generally People v Ashwal,*39 NY2d 105, 111 [1976]; *People v Lovello,*1 NY2d 436, 439 [1956]) and, because the evidence of defendant’s guilt is not overwhelming, it cannot be said that the error is harmless *(see generally People v Crimmins,*36 NY2d 230, 241-242 [1975]). We therefore reverse the judgment, and we grant a new trial on the indictment.

In light of our conclusion, we need not address defendant’s remaining contentions. Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.