***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
                   STATE v. PETION—CONCURRENCE

  PALMER, J., concurring in the judgment. I agree with
and join part I of the majority opinion,1 in which the
majority concludes that there was insufficient evidence
of serious physical injury to support the conviction of
the defendant, Divenson Petion, on one of two counts
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (1). Although I concur in the judg-
ment, I do not join part II of the majority opinion, in
which the majority rejects the state’s request to modify
the judgment of conviction to reflect the defendant’s
conviction of the lesser included offense of assault in
the second degree in violation of General Statutes § 53a-
60 (a) (2) in light of this court’s reversal of the defen-
dant’s conviction of first degree assault on the basis of
evidentiary insufficiency.
   I continue to maintain my view that State v. LaFleur,
307 Conn. 115, 151–54, 51 A.3d 1048 (2012), in which
this court effectively adopted a bright line rule requiring
that a conviction be vacated under the present circum-
stances, was wrongly decided. See id., 164–66 (Palmer,
J., dissenting). As I explained in my dissenting opinion
in LaFleur, the majority in that case employed a flawed
analysis that failed to account for the fact that the
categorical rule it adopted—albeit while claiming to
adopt a fairness based, case-by-case approach, a claim
that, as the majority in the present case candidly
acknowledges, is groundless—penalizes the state for
failing to request a charge on the lesser included
offense, even though the defendant himself had the
absolute right to seek and obtain such an instruction,
and irrespective of whether the defendant suffered any
prejudice as a result of that omission. Id., 181–85
(Palmer, J., dissenting). In so doing, the rule ‘‘bestows
a windfall on the wholly undeserving defendant—and
does so at the expense of the victim of the assault, the
state and the general public—without any countervail-
ing public benefit.’’ Id., 165 (Palmer, J., dissenting).
  That having been said, LaFleur was the governing
law at the time of trial in the present case, and the
defendant was entitled to rely on that law when he opted
against seeking a lesser included offense instruction.
Therefore, even if I would favor overruling LaFleur, I
would do so prospectively only. Accordingly, I agree
that the defendant’s conviction on one of two of the first
degree assault counts should be reversed and concur
in the judgment.
  1
    Although I agree with and join part I of Justice McDonald’s opinion, and
concur in the judgment, for reasons stated hereinafter, I do not join part II
of Justice McDonald’s opinion. Therefore, that opinion, in which Justices
Kahn and Ecker join, is technically not a majority opinion but, rather, an
opinion announcing the judgment of the majority of this court. In the interest
of simplicity, however, I refer to that opinion as the majority opinion.
