I concur with all aspects of the majority’s decision except that part which affirms defendant’s conviction of assault in the second degree as charged in count two of the indictment. Because I believe that what we know genetically as a BB gun is not a deadly weapon as statutorily defined and, further, that a reasonable view of the evidence could support a finding that the handgun described throughout the record as a “BB gun” was not used as a dangerous instrument, I would hold that defendant was entitled to a charge on the lesser included offense of assault in the third degree.
Defendant was charged with intentionally causing injury to the victim “by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.05 [2]). The definition of a “[d]eadly weapon” includes “any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged” and lists other specific weapons— other than firearms—which constitute deadly weapons, such as certain kinds of knives, etc. (Penal Law § 10.00 [12]). A “[d]angerous instrument” is defined as “any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13]).
As the majority points out, some precedent exists for the proposition that an “air pistol” is a deadly weapon (see People v Jones, 54 AD2d 740, 740 [1976]; see also People v Madeo, 103 AD2d 901, 902 n [1984] [citing with approval, in dicta, People v Jones, supra]). The record in this case is insufficient for us to identify with particularity the exact nature of the weapon used by defendant, but it is consistently described as a “BB gun” and precedent exists which suggests that a BB gun is not a deadly weapon (see People v Bowman, 133 AD2d 701 [1987], lv denied 70 NY2d 953 [1988]). In my view, the type of pump-action “BB gun” formerly marketed for use by children is not a “deadly weapon” as defined by the Penal Law but could, under the correct circumstances, be a “dangerous instrument.”
Thus, although I believe that legally sufficient evidence exists to support defendant’s conviction of assault in the second degree because a factfinder could reasonably conclude that a BB gun shot at point blank range toward a bound individual facing the shooter is an instrument “which, under the circumstances in which it is used ... is readily capable of causing . . . serious physical injury” (Penal Law § 10.00 [13] [emphasis added]), *757that is not the issue on appeal but, rather; defendant’s entitlement to charge. On that issue, I believe that a reasonable fact-finder could reach the opposite conclusion and find that, unless shot at a particularly vulnerable spot—such as an eye—a BB gun is not “readily capable” of causing serious injury. Accordingly, because defendant requested a charge of assault in the third degree which is a lesser included offense of assault in the second degree, and because a reasonable view of the evidence exists which could support the finding that defendant committed the lesser offense—i.e., he intentionally caused injury (see Penal Law § 120.00)—but did not commit the greater—i.e., that the BB gun, as used under these circumstances, was not readily capable of causing serious injury (see Penal Law § 120.05 [2])— defendant’s request under this count should have been granted (see CPL 300.50 [1], [2]; People v Van Norstrand, 85 NY2d 131, 135 [1995]).
Ordered that the judgment is modified, on the law, by reversing defendant’s conviction of assault in the second degree under count three of the indictment; matter remitted to the Supreme Court for a new trial on said count; and, as so modified, affirmed.