People v. Benjamin

47 A.D.2d 861, 366 N.Y.S.2d 44, 1975 N.Y. App. Div. LEXIS 9213

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 14, 1973, convicting him of murder, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Viewing defendant’s trial testimony in the light most favorable to him, as required (People v Steele, 26 NY2d 526, 529), it is apparent that an instruction to the jury on the defense of justification was called for in this case (see People v Sanza, 37 AD2d 632). The failure of the trial court to instruct the jury on this issue requires a reversal and a new trial. The fact that no exception was taken to the charge as given and that no request to charge was made "is of no moment * * * where a [homicide] conviction is founded upon an erroneous charge” (People v Rainey, 34 AD2d 557; People v Almond, 37 AD2d 571; People v Butts, 14 AD2d 486). Latham, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.