Opinion
May 8, 1989
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The defendant, who admittedly shot and killed his brother-in-law, was acquitted of murder in the second degree and manslaughter in the first degree but convicted of unlawfully possessing the weapon he used during the shooting. The defendant's assertion to the contrary notwithstanding, the trial court did not err when it denied his request that the jury be instructed that temporary and innocent possession of the gun was a defense to the charge of which the defendant was ultimately convicted.
The fact that the evidence supported a claim that the defendant was acting in self-defense during the actual shooting does not excuse the separate act of unlawfully possessing a loaded firearm (see, People v Carrion, 136 A.D.2d 649). The evidence, viewed in the light most favorable to the defendant (see, People v Steele, 26 N.Y.2d 526, 529), demonstrated that the defendant armed himself in anticipation of a confrontation with his brother-in-law (see, People v Williams, 50 N.Y.2d 1043) and that the defendant shot him 11 times (see, People v DePass, 130 A.D.2d 586). Therefore, the defendant was not entitled to the requested charge (People v Carrion, supra; People v DePass, supra).
We discern no basis for disturbing the sentence imposed (see, People v Suitte, 90 A.D.2d 80). Brown, J.P., Kooper, Harwood and Rosenblatt, JJ., concur.