People v. Melendez

96 A.D.2d 517, 465 N.Y.S.2d 38, 1983 N.Y. App. Div. LEXIS 19033

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered March 9, 1982, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and a new trial ordered. The Trial Judge erred in charging the jury under the wrong section of the Penal Law. While the court attempted to cure the error by correctly charging the section under which defendant was indicted, it failed to inform the jury that its original instruction was incorrect. Consequently, we cannot be confident that the jury found defendant guilty of the crime of which he was charged. Titone, J. P., Gibbons, O’Connor and Weinstein, JJ., concur.