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DEFENDANT, WHO ACCEPTED POSSESSION OF THE WEAPON FROM HIS FRIEND, DID SO IN ANTICIPATION OF A POSSIBLE CONFRONTATION; DURING THE CONFRONTATION DEFENDANT SHOT TWO PEOPLE; THE ARGUMENT THAT DEFENDANT ACTED IN SELF-DEFENSE DID NOT RENDER DEFENDANT’S POSSESSION OF THE WEAPON TEMPORARY AND LAWFUL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two concurring opinions, determined defendant was not entitled to a jury instruction on temporary and lawful possession of a firearm. Defendant was leaving a friend’s apartment building when he saw a man, Carson, pull a gun out of his pocket. Defendant and Carson had a history of violent confrontations, including shootings. Defendant went back to his friend’s (Foe’s) apartment. Foe picked up a loaded gun and offered to walk defendant out of the building. When they got to the lobby Foe handed defendant the gun. When defendant saw Carson he believed Carson was about to shoot him and defendant shot Carson and a bystander:

… “[A] defendant may not be guilty of unlawful possession if the jury finds that [the defendant] found the weapon shortly before [the defendant’s] possession of it was discovered and [the defendant] intended to turn it over to the authorities” … . We have also indicated that temporary and lawful possession may result where a defendant “took [the firearm] from an assailant in the course of a fight” … and the circumstances do not otherwise evince an intent to maintain unlawful possession of the weapon . In such scenarios, “[t]he innocent nature of the possession negates . . . the criminal act of possession” … . Ultimately, whether the weapon is found fortuitously or obtained by disarming an attacker, “the underlying purpose of the charge is to foster a civic duty on the part of citizens to surrender dangerous weapons to the police” … . …

… [D]efendant’s possession did not “result temporarily and incidentally from the performance of some lawful act, [such] as disarming a wrongful possessor” or unexpected discovery … . Rather, under the circumstances presented here, defendant’s contention that his possession should be legally excused on the grounds of self-defense amounts to a claim that he was entitled to possess the weapon for his protection. Even crediting defendant’s testimony that he had been confronted by Carson at the building’s exit earlier and that Carson had displayed a firearm at that time, defendant testified that he then safely retreated to Foe’s apartment. There was no evidence suggesting that Carson chased after defendant when he re-entered the building, or that Carson had any awareness of defendant’s location in the building. Further, defendant admitted that he accepted possession of the firearm from Foe in the stairwell, at a time when he was unaware of Carson’s whereabouts and was not facing any imminent threat to his safety. Defendant then chose to retain possession of the firearm and to enter the lobby with the weapon in his hand. Under these circumstances, the only reasonable conclusion to be drawn from the evidence is that defendant armed himself in anticipation of a potential confrontation; however, the law is clear that defendant “may not avoid the criminal [possession] charge by claiming that he possessed the weapon for his protection” … . People v Williams, 2020 NY Slip Op 07664, CtApp 12-17-20

 

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