DEFENDANT CLAIMED HE TOOK POSSESSION OF THE VICTIM’S GUN AND FIRED AFTER THE VICTIM FIRED AT HIM; DEFENDANT WAS ACQUITTED OF ATTEMPTED MURDER, ATTEMPTED ASSAULT AND ASSAULT BUT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON; THE JURY SHOULD HAVE BEEN INSTRUCTED ON “TEMPORARY LAWFUL POSSESSION OF A WEAPON;” NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s possession of a weapon conviction and ordering a new trial, determined the defense request for a jury instruction on lawful possession of a weapon should have been granted. Defendant raised the justification defense and was acquitted of the attempted murder, attempted assault and assault charges:

According to the defense theory, Farmer [the victim] fired several shots at the defendant before the defendant took possession of a gun and fired back at Farmer. Defense counsel also requested a charge on the defense of justification … as to the counts of criminal possession of a weapon, and a charge on the defense of temporary and lawful possession of a weapon as to those counts. The Supreme Court issued a deadly physical force justification charge, but declined to instruct the jury on the defenses of justification pursuant to Penal Law § 35.05(2) and temporary and lawful possession of a weapon with respect to the counts of criminal possession of a weapon. * * *

As reflected by the fact that the jury acquitted the defendant of the charges of attempted murder in the second degree, assault in the second degree, and attempted assault in the first degree, based upon a justification defense, there was a reasonable view of the evidence that the defendant took possession of the gun with a valid legal excuse … . The fact that the defendant fired a gun on a public street does “not negate a defendant’s entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful” … . Further, “the defendant’s intent to turn the subject weapon over to the lawful authorities is not a necessary element of the defense of temporary and lawful possession” … . Moreover, there is no evidence that the defendant retained the gun after fleeing the location of the shooting … . People v Walker, 2025 NY Slip Op 03830, Second Dept 6-25-25

Practice Point: Defendant claimed he took possession of the victim’s gun and fired only after the victim had fired at him. The jury should have been instructed on “temporary lawful possession of a weapon.”