People v. Peterson

233 A.D.2d 533, 650 N.Y.S.2d 762, 1996 N.Y. App. Div. LEXIS 12720

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered June 12, 1995, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered. The facts have been considered and are determined to have been established (see, CPL 470.25 [2] [d]).

As the People correctly concede, the defendant is entitled to a new trial based on the trial court’s erroneous refusal to charge the defense of temporary and lawful possession of a weapon (see, People v Almodovar, 62 NY2d 126; People v Thomas, 172 AD2d 572). The defendant testified that he was confronted by the victim who was holding a gun, and believing that he was about to be robbed he grabbed the gun and fired three times in self-defense. He walked away in a state of shock and was arrested minutes later after a brief chase. Viewing the evidence in the light most favorable to the defendant with respect to the trial court’s charge (see, People v Butts, 72 NY2d 746, 750), the defense of temporary and lawful possession of a weapon should have been charged to the jury (see, People v Almodovar, supra, at 129-130).

In light of our determination, we do not reach the defendant’s remaining contention. Thompson, J. P., Joy, Krausman and Luciano, JJ., concur.