People v. Kelly

64 A.D.2d 955, 404 N.Y.S.2d 141, 1978 N.Y. App. Div. LEXIS 12876

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 8, 1977, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. In our opinion the defendant sufficiently raised the defense of justification under section 35.15 (subd 1, par [b]) of the Penal Law so as to require the trial court to instruct the jury that the prosecution had the burden of disproving the defense of justification beyond a reasonable doubt (see People v Steele, 26 NY2d 526; People v Robinson, 47 AD2d 618; People v Soto, 38 AD2d 734). The failure to so charge was reversible error. Titone, J. P., Suozzi, Margett and O’Connor,

JJ., concur.