Opinion
March 29, 1976
Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 5, 1975, convicting him of reckless endangerment in the second degree, possession of a weapon as a felony and prohibited use of weapons, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. This case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd 5). Martuscello, Acting P.J., Christ, Titone and Hawkins, JJ., concur; Shapiro, J., concurs as to the affirmance of the conviction for possession of a weapon, but otherwise dissents and votes to reverse and grant a new trial as to the remaining counts, with the following memorandum: I would modify the judgment, on the law and as a matter of discretion in the interest of justice, to the extent of reversing the convictions for reckless endangerment in the second degree and prohibited use of weapons, and ordering a new trial thereon. Viewing defendant's trial testimony in the light most favorable to him, as required (People v Steele, 26 N.Y.2d 526, 529), it is apparent that an instruction to the jury on the defense of justification was called for (see People v Benjamin, 47 A.D.2d 861; see, also, People v Sanza, 37 A.D.2d 632). However, since the defense of justification does not, under the facts of this case, relate to the conviction for possession of a weapon, there is no reason to reverse and order a new trial as to that count (cf. People v Dalton, 38 N.Y.2d 222).