People v. Kennedy

85 A.D.2d 673, 445 N.Y.S.2d 199, 1981 N.Y. App. Div. LEXIS 16494

Opinion

Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Queens County (Brennan, J.), both rendered October 2, 1980, convicting each of them of assault in the first degree, upon a jury verdict, and imposing sentences. Judgments reversed, on the law, and new trial ordered. No issue has been presented with respect to the findings of fact. As conceded by the trial court, defendants raised the defense of justification under subdivision 3 of section 35.20 of the Penal Law. Therefore, the court should have instructed the jury that the prosecution had the burden of disproving the defense beyond a reasonable doubt (see People v Steele, 26 NY2d 526; People v Kelly, 64 AD2d 955; People v Soto, 38 AD2d 734). In the circumstances of this case, the failure to so charge was reversible error. Cohalan, J. P., O’Connor, Thompson and Bracken, JJ., concur.