(dissenting). In my view the trial court erred as a matter of law in refusing defendant’s request to charge DWAI (Vehicle and Traffic Law, § 1192, subd 1), as a lesser included offense of the count in the indictment charging defendant with a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law (operating a motor vehicle while having .10 of *1018one per centum or more by weight of alcohol in his blood). In assessing this case as one presenting a “take it or leave it situation in which there was no evidentiary basis for a compromise finding” the majority follow the dissenters in People v Brown (73 AD2d 112, 116-117) and thus inadequately weigh the “prerogative of the jury to accept or reject part or all of the defense’s or the prosecution’s proof” (People v Hoag, 51 NY2d 632, 637). There is no dispute that DWAI is a lesser included offense of a charged violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law (see Vehicle and Traffic Law, § 1196, subd 1; People v Hoag, supra; People v Brown, supra) but the majority conclude that where the sole evidence in support of the higher crime is a blood test showing .10 percent or more by weight of alcohol in the blood, there is no possible hypothesis to support a jury verdict of guilty of the lesser included offense. While I disagree with an analysis which limits the alternative of the jury either to accept or reject the test in toto, even assuming its intellectual validity the majority result premised thereon fails to take into account that the jury found defendant guilty of DWAI as a lesser included count on a charge of driving while intoxicated under subdivision 3 of section 1192 of the Vehicle and Traffic Law. Notwithstanding the inadvisedly limited record on which this appeal is presented, the conclusion is inescapable that the evidence of DWAI which supports both the court’s charge and the verdict rendered thereon on the driving while intoxicated count of the indictment would also support the submission of DWAI as a lesser included count of the blood alcohol violation (People v Brown, 73 AD2d 112, 114-115, supra). I would reverse the judgment insofar as it convicts defendant of a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law and would grant a new trial on that count of the indictment. (Appeal from judgment of Genesee County Court — driving with over .10% alcohol.) Present — Dillon, P. J., Cardamone, Simons, Den-man and Schnepp, JJ.