Opinion
December 31, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 25, 1977, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was charged with murder in the second degree (felony murder). At trial the jury was presented with a factual question as to whether defendant established the affirmative defense to felony murder set forth in subdivision 3 of section 125.25 Penal of the Penal Law. An erroneous charge indicated to the jury that the application of the affirmative defense was discretionary. A new trial is therefore required (see People v. Santanella, 63 A.D.2d 744; People v. Vinniane, 70 A.D.2d 956). We have considered defendant's other contentions and find them to be without merit. O'Connor, J.P., Mangano, Rabin and Gibbons, JJ., concur.