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People v. Bonilla

Supreme Court of New York, First Department

September 5, 2017

The People of the State of New York, Respondent,
v.
Luis Bonilla, Defendant-Appellant.

         Defendant 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.

          Darcel D. Clark, District Attorney, Bronx (Emily Anne Aldridge and Rafael Curbelo of counsel), for respondent.

          Peter Tom, J.P., John W. Sweeny, Jr., Rosalyn H. Richter, Barbara R. Kapnick, Troy K. Webber, JJ.

          OPINION

          KAPNICK, J.

         Defendant 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 years.

         The Criminal Jury Instruction charge for Temporary and

         Lawful 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 safely.
"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."

         The 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 [1988]). 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 [1980]).

         In 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.

         The 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 ...


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