People v. Singleteary 54 A.D.2d 1088

Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: Although defendant was indicted for intentional murder, manslaughter in the first degree, and two counts of possession of a weapon, he was ultimately found guilty only of possession of a weapon in violation of subdivision 2 of section 265.05 of the Penal Law. Upon the testimony produced at trial there were sufficient facts for the jury to find that defendant’s possession of the gun was momentary and only occurred when he wrested the weapon from the deceased. In this situation the court’s failure to charge as requested, that temporary possession of a weapon for a lawful purpose would not contravene subdivision 2 of section 265.05 of the Penal Law was reversible error (People v La Pella, 272 NY 81; People v Persce, 204 NY 397; People v Furey, 13 AD2d 412; People v Harmon, 7 AD2d 159). (Appeal from judgment of Onondaga County Court— possession of weapon.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.