PEOPLE v. RUSSELL (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered December 1, 2005, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant, who was charged with criminal possession of a weapon in the third degree, interposed the statutory defense of temporary lawful possession (see Penal Law § 25.00[1] ).   The trial court's charge to the jury on this defense was error because it failed to clearly and unequivocally convey the People's burden of disproving the defense beyond a reasonable doubt (see People v. Jones, 104 A.D.2d 826, 827, 480 N.Y.S.2d 49;  People v. Moran, 84 A.D.2d 753, 443 N.Y.S.2d 753;  People v. Figueroa, 80 A.D.2d 520, 521, 436 N.Y.S.2d 1;  see also CJI2d[NY] 9.65, Possession-Temporary;  People v. Victor, 62 N.Y.2d 374, 377-378, 477 N.Y.S.2d 97, 465 N.E.2d 817).   This error was compounded by the trial court's failure to adequately marshal the defendant's evidence on this issue and clearly explain the relevant legal principles pertaining to the defense.

Subsequently, in response to a jury request for clarification on the elements of the offense, the court re-instructed the jury on, inter alia, the defense of temporary innocent possession.   On the whole, considering the re-instruction on this defense in conjunction with the initial charge, the proper standard regarding the burden of proof was not clearly and unequivocally conveyed to the jury (see People v. Victor, 62 N.Y.2d 374, 377-378, 477 N.Y.S.2d 97, 465 N.E.2d 817;  People v. Moran, 84 A.D.2d 753, 443 N.Y.S.2d 753;  see also People v. Perez, 127 A.D.2d 707, 710, 511 N.Y.S.2d 687;  see generally People v. Drake, 7 N.Y.3d 28, 33-34, 817 N.Y.S.2d 583, 850 N.E.2d 630;  cf. People v. Sterling, 151 A.D.2d 522, 542 N.Y.S.2d 310).   There was no reason for the trial court to go beyond the standard instruction (see People v. LaDolce, 196 A.D.2d 49, 55, 607 N.Y.S.2d 523) on the law of temporary possession (see CJI2d[NY] 9.65).   Under the circumstances, we cannot say that the error was harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Jones, 74 A.D.2d 854, 856, 425 N.Y.S.2d 376).

The defendant's claim that a portion of the court's charge as to reasonable doubt was erroneous is unpreserved for appellate review (see CPL 470.05;  People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430;  People v. Rodriguez, 220 A.D.2d 701, 633 N.Y.S.2d 978) and, in any event, need not be reached in light of our determination.