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THE DEFENDANT, THINKING THAT THE PERSON TRYING TO BREAK-IN WAS HER ESTRANGED HUSBAND WHO HAD BROKEN IN AND ATTACKED HER BEFORE, FIRED A SINGLE SHOT THROUGH THE METAL DOOR, KILLING THE VICTIM (WHO WAS NOT HER ESTRANGED HUSBAND); BECAUSE HER USE OF THE WEAPON WAS DEEMED DANGEROUS AND RECKLESS, DEFENDANT WAS NOT ENTITLED TO THE TEMPORARY AND LAWFUL USE OF A WEAPON JURY INSTRUCTION (CT APP).

The Court of Appeals, reversing the appellate division, determined the defendant was not entitled to the temporary and lawful possession of a weapon jury instruction in this murder case. Defendant thought the person trying to get into her house was her estranged husband who had broken in and attacked her before. She fired one shot through the metal door, killing the victim (who was not her estranged husband). Defendant was convicted of criminal possession of a weapon and acquitted of murder and tampering with evidence. The appellate division reversed, finding defendant was entitled to the temporary and lawful possession of a weapon instruction. The Court of Appeals reversed, finding that the jury instruction was not warranted:

A defendant is entitled to a jury charge on the defense of temporary and lawful possession when there is evidence presented at trial “‘showing a legal excuse for . . . possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner'” … . Here, defendant used the weapon in a dangerous manner … . Although no single fact is dispositive, she fired the gun blindly through a closed, windowless door, endangering anyone who might have been on the other side, striking and killing the victim, and creating a risk that the bullet would ricochet off the metal door and potentially injure her children.

Viewing the evidence adduced at trial in the light most favorable to defendant, as we must … , we conclude that “‘no reasonable view of the evidence would support a finding of the tendered defense'” of temporary and lawful possession and, thus, County Court was “‘under no obligation to submit the question to the jury'” … . Inasmuch as defendant’s actions were reckless and dangerous, she was not entitled to the temporary and lawful possession charge. People v Ruiz, 2022 NY Slip Op 07092, CtApp 12-15-22

Practice Point: Use of a weapon which is deemed dangerous and reckless, here shooting through a metal door, precludes instructing the jury on the temporary and lawful use of a weapon.

 

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