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DEFENDANT TOOK THE GUN FROM THE VICTIM AND KILLED THE VICTIM IN SELF DEFENSE; THE DEFENDANT’S BRIEF, TEMPORARY POSSESSION OF THE WEAPON AFTER THE SHOOTING DID NOT CONSTITUTE CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction, over a dissent, determined the temporary possession of the gun did not meet the criteria for criminal possession of a weapon second degree. The gun belonged to the victim. During a struggle with the defendant the gun fell to the ground. Both the defendant and the victim dove for the gun. The defendant retrieved it and shot the victim. The defendant held on to the gun very briefly and then disposed of it. The defendant was acquitted of murder:

As reflected by the fact that the jury acquitted the defendant of the murder charge, based upon the defense of justification, the defendant initially took possession of the gun with a valid legal excuse … , and there is no evidence that the defendant retained the gun beyond opportunities to hand it over to the authorities … . The cases cited by our dissenting colleague are clearly distinguishable, involving situations where a defendant retained possession of a gun until it was found by the police … , retained access to the gun after hiding it in a secure location … , acted furtively when confronted by police with a weapon on his person … , or disposed of the weapon during hot pursuit by the police … .

Indeed, our dissenting colleague acknowledges that turning the gun over to authorities is not an element of temporary and lawful possession … . Here, the defendant retained the gun for a brief period while he looked for his brother, and, not finding him, unloaded the gun and disposed of it in the trash. At trial, when he was asked about his intention, the defendant responded, “[m]y intention this is not my gun. Why hold it.” The evidence indicated that the defendant retained the gun for a sufficient time to dispose of it. The fact that he disposed of the gun without turning it into the authorities did not convert his temporary and lawful possession of the gun into illegal possession … . People v Rose, 2021 NY Slip Op 00577, Second Dept 2-3-21

 

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