appeals from the judgment of the Supreme Court, Bronx County
(George Villegas, J.), rendered November 22, 2013, convicting
him, after a jury trial, of criminal possession of a weapon
in the second degree, and imposing sentencing.
Cardozo Criminal Appeals Clinic, New York (Stanley Neustadter
of counsel), for appellant.
D. Clark, District Attorney, Bronx (Emily Anne Aldridge and
Rafael Curbelo of counsel), for respondent.
Tom, J.P., John W. Sweeny, Jr., Rosalyn H. Richter, Barbara
R. Kapnick, Troy K. Webber, JJ.
was charged with manslaughter in the first degree and two
counts of criminal possession of a weapon in the second
degree, based on allegations that he fatally shot the
decedent. At trial, defendant asserted a justification
defense to the manslaughter charge, the court instructed the
jury accordingly, and the jury acquitted defendant of
manslaughter. Defendant also requested an instruction on
"innocent possession" of a weapon. The court,
however, declined to charge temporary lawful possession of a
weapon, finding that there was no reasonable view of the
evidence that would warrant it. The jury subsequently
acquitted defendant of one count of criminal possession of a
weapon in the second degree (intent to use unlawfully against
another), but convicted him of the other count of criminal
possession of a weapon (possession not in home or business).
Defendant thereafter was sentenced to a term of 7½
Criminal Jury Instruction charge for Temporary and
Possession of a Weapon states in relevant part:
"A person has innocent possession of a weapon when he or
she comes into possession of the weapon in an excusable
manner and maintains possession, or intends to maintain
possession, of the weapon only long enough to dispose of it
"There is no single factor that by itself determines
whether there was innocent possession. In making that
determination, you may consider any evidence which
establishes that the defendant had knowing possession of a
weapon, the manner in which the weapon came into the
defendant's possession, the length of time the weapon
remained in his/her possession, whether the defendant had an
intent to use the weapon unlawfully or to safely dispose of
it, the defendant's opportunity, if any, to turn the
weapon over to the police or other appropriate authority, and
whether and how the defendant disposed of the weapon.
"The defendant is not required to prove that his
possession of the weapon was innocent. Rather, the People are
required to prove beyond a reasonable doubt both that the
defendant knowingly possessed the weapon and that such
possession was not innocent."
trial court, when determining whether to give a charge on a
claimed defense, "must view the evidence in the light
most favorable to the defendant, " and "[u]pon
defendant's request, the court must instruct the jury on
the defense if it is sufficiently supported by the evidence;
failure to do so may constitute reversible error"
(People v Butts, 72 N.Y.2d 746, 750 ). Here,
there was a reasonable view of the evidence to support
defendant's request for an instruction on temporary and
lawful possession of a weapon. To trigger the right to such a
charge, "there must be proof in the record showing a
legal excuse for having the weapon in [defendant's]
possession as well as facts tending to establish that, once
possession has been obtained, the weapon had not been used in
a dangerous manner" (People v Williams, 50
N.Y.2d 1043, 1045 ).
essence, the evidence at trial was that on the evening of
January 8, 2012, in the vicinity of 924 East 181st Street in
Bronx County, after being pushed around by the decedent,
defendant and the decedent struggled over a gun, during which
struggle defendant retrieved the gun from the decedent, and
walked away with it. Shortly thereafter, defendant, while
still on the same block on East 181st Street, was approached
by the decedent and three or four other men. Another struggle
ensued, and defendant removed the gun from his waist and shot
two men, one of whom died.
People presented numerous witnesses at trial, including two
brothers, both of whom knew defendant and the decedent, and
on the night of the incident were having dinner at their
mother's apartment on East 181st Street. Both brothers
testified that they heard voices and a commotion coming from
outside, and that when they looked out the window, they saw
the decedent, who said his gun had been taken. One of the
brothers went outside to talk to the decedent, who then
proceeded to cross the street and walk down the block towards
defendant. The brothers had a clear view of the street and
the area was well lit. The brothers testified that they could
see defendant, the decedent, a man in a blue and white
striped shirt, and another man. The ...