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THE INDICTMENT CHARGED DEFENDANT WITH POSSESSION OF A WEAPON OUTSIDE HIS HOME OR BUSINESS; THE JUDGE INSTRUCTED THE JURY THEY NEED ONLY FIND DEFENDANT POSSESSED A LOADED FIREARM; THE POSSESSION OF A WEAPON CONVICTION WAS REVERSED (SECOND DEPT).

The Second Department, reversing the possession-of-a-weapon conviction, determined the People were required to prove what was alleged in the indictment and the bill of particulars, i.e., that defendant possessed the weapon outside his home or business. The judge charged the jury they need only find defendant has knowingly possessed any firearm:

… [T]he defendant was charged in count 1 of the indictment with criminal possession of a weapon in the second degree under the theory that, on the date in question, he knowingly possessed a loaded firearm and that such possession was not in his home or place of business (see Penal Law § 265.03[3]). * * *

“Where the prosecution is limited by the indictment or bill of particulars to a certain theory or theories, the court must hold the prosecution to such narrower theory or theories” … . Under the circumstances of this case, the People were required to prove at trial as an element of criminal possession of a weapon in the second degree that the possession of the loaded firearm was not in the defendant’s home or place of business (see Penal Law § 265.03[3] …). As the defendant correctly contends, the Supreme Court’s instruction impermissibly removed from the jury’s consideration an element of the crime of criminal possession of a weapon in the second degree as charged in count 1 of the indictment … . People v Reid, 2023 NY Slip Op 00336, Second Dept 1-25-23

Practice Point: The People are constrained to prove what is charged in the indictment and alleged in the bill of particulars. If the judge instructs the jury otherwise, the conviction will be reversed. Here the judge determined defendant had a prior conviction and his possession of a weapon, no matter where, would support a conviction. Therefore, the judge reasoned, the jury need not be instructed that the possession must be outside defendant’s home or business as charged in the indictment. The conviction was reversed.

 

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