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JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing defendant’s conviction for possession of a weapon, determined the jury should have been instructed on the innocent possession of a weapon defense. There was evidence that the defendant had taken the pistol away from decedent, who had struck him with it. Defendant walked away with the pistol. Three minutes later defendant was grabbed from behind by a man who was with the decedent. There was evidence the defendant shot the man and the decedent. The jury was instructed on the justification defense and acquitted the defendant of manslaughter:

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When this evidence is viewed in the light most favorable to defendant, nothing he did or failed to do in the very brief interval between excusably obtaining the pistol and being confronted by the decedent and his companions constituted “us[ing the pistol] in a dangerous manner” … . Given the justification defense, which, as the court correctly determined, warranted a justification charge, the fact that defendant shot the decedent did not constitute a “dangerous use” barring the court from giving a temporary lawful possession charge. Courts have found that the firing of shots did not negate a defendant’s entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful. People v Bonilla, 2017 NY Slip Op 06405, First Dept 9-5-17

CRIMINAL LAW (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/WEAPON, POSSESSION OF (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))/INNOCENT POSSESSION OF A WEAPON (JURY SHOULD HAVE BEEN INSTRUCTED ON THE INNOCENT POSSESSION OF A WEAPON DEFENSE, NEW TRIAL ORDERED (FIRST DEPT))

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