usably obtaining the pistol and being confronted by the decedent and his companions constituted "us[ing the pistol] in a dangerous manner" ( Williams, 50 N.Y.2d at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 ). Given the justification defense, which, as the court correctly determined, warranted a justification charge, the fact that defendant shot the decedent did not constitute a "dangerous use" barring the court from giving a temporary lawful possession charge. Courts have found that the firing of shots did not negate a defendant's entitlement to a temporary lawful possession instruction where the shooting was justified and the possession was otherwise lawful. For example, in People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984) the Court found that it was proper to instruct the jury on temporary and lawful possession where the defendant claimed that he had fired several pistol shots in self-defense with a pistol that he had wrested from his attacker (see also People v. Messado, 49 A.D.2d 560, 370 N.Y.S.2d 616 [1st Dept.1975] ). So long as possession is lawful at the time that the shots are fired, and so long as the firing itself is lawful (i.e.justified), it will not defeat the right to the instruction (see People v. Almodovar, 62 N.Y.2d at 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 ; People v. Messado, 49 A.D.2d at 560, 370 N.Y.S.2d 616 ; People v. Sackey–El, 149 A.D.3d 1104, 52 N.Y.S.3d 492 [2d Dept.2017] ).Nor, in this case, does defendant's brief retention and subsequent use of the weapon support a finding that the jury instruction was not warranted, because the evidence did not indicate a "transitory lawful possession, and no use of the weapon in a dangerous manner" ( People v. Karim, 176 A.D.2d 670, 671, 575 N.Y.S.2d 321 [1st Dept.1991], lv. denied 79 N.Y.2d 859, 580 N.Y.S.2d 731, 588 N.E.2d 766 [1992] ). Cases in which such a determination has been warranted are distinguishable.

02, that criminal possession of a weapon is a strict liability crime requiring no particular mental culpability. (See, e.g., People v Messado, 49 A.D.2d 560 [1st Dept 1975]; People v Ansare, 96 A.D.2d 96 [4th Dept 1983]; People v Newton, 72 Misc.2d 646, 647 [Sup Ct, Queens County 1973]; People v Davis, 112 Misc.2d 138, 140 [Crim Ct, Bronx County 1981]; Matter of Ronnie L., 121 Misc.2d 271, 273 [Fam Ct, N Y County 1983]; see, People v Velasquez, 139 Misc.2d 822, 824-825 [Sup Ct, N Y County 1988].) In spite of the lack of equivocation in this assertion, a close reading of these cases reveals qualifications upon strict liability for weapons possession.

away, and during "(a)nother struggle" with the decedent and several other men soon thereafter, the defendant shot the decedent and one of the men before running away and dropping the gun on the street], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ; People v. Legett, 140 A.D.2d 1, 4, 531 N.Y.S.2d 559 [1st Dept. 1988] [same error, where the defendant testified that he grabbed a plastic bag containing a gun away from his assailant and surrendered the gun to the police when they arrived on the scene]; People v. Singleteary, 54 A.D.2d 1088, 1088, 388 N.Y.S.2d 746 [4th Dept. 1976] [same error, where the jury could find that "defendant's possession of the gun was momentary and only occurred when he wrested the weapon from the deceased"]; People v. Pendergraft, 50 A.D.2d 531, 532, 374 N.Y.S.2d 669 [1st Dept. 1975] [same error, where a police officer testified that he saw the defendant throw a gun to the ground while struggling with another man who was wielding a knife]; People v. Messado, 49 A.D.2d 560, 560, 370 N.Y.S.2d 616 [1st Dept. 1975] [same error, where the decedent was shot amid "a struggle for control of the weapon" and "(t)here was conflicting testimony" about whether the defendant or the decedent possessed the gun] ). As the majority notes, our Court has not decided a case in which a defendant acquired a weapon during a life-threatening altercation from someone other than the defendant's assailant, but the Appellate Division has held that temporary and lawful possession instructions were warranted in cases where the defendant, while fending off an assailant, obtained the weapon from another source (see e.g.People v. Fletcher, 166 A.D.3d 796, 799, 88 N.Y.S.3d 92 [2d Dept. 2018] [it was error not to instruct the jury on temporary and lawful possession where the defendant testified that he picked up a knife from the floor and stabbed the complainant while under attack from the complainant and another person];

Most of these cases are factually inapposite. See, e.g., People v. Davis, 61 App. Div.2d 760, 761, 402 N.Y.S.2d 9 (1978) (defendant entitled to instruction of "temporary, lawful possession" on weapons charge where defendant testified that he obtained weapon by disarming attacker); People v. Messado, 49 App. Div.2d 560, 370 N.Y.S.2d 616 (1975) (temporary, innocent possession defense applicable where defendant may have gained possession of weapon by disarming attacker). Other cases have allowed the defense on the grounds that temporary, lawful possession may rebut a presumption that the defendant intended to use the gun unlawfully.

which the weapon came into the defendant's possession, the length of time the weapon remained in his/her possession, whether the defendant had an intent to use the weapon unlawfully or to safely dispose of it, the defendant's opportunity, if any, to turn the weapon over to the police or other appropriate authority, and whether and how the defendant disposed of the weapon" (CJI2d[NY] Temporary and Lawful Possession).Here, defendant's testimony, if credited, provides sufficient facts from which the jury could find a lawful basis for defendant having temporarily and innocently possessed the subject pistol without having had any intent to use it in a dangerous manner or an opportunity to subsequently turn it over to police (seePeople v. Fletcher, 166 A.D.3d 796, 798–799, 88 N.Y.S.3d 92 [2018] ; People v. Bonilla, 154 A.D.3d 160, 161–166, 60 N.Y.S.3d 148 [2017], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ; People v. Legett, 140 A.D.2d 1, 3–4, 531 N.Y.S.2d 559 [1988] ; People v. Messado, 49 A.D.2d 560, 560, 370 N.Y.S.2d 616 [1975] ; see alsoPeople v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Graham, 148 A.D.3d 1517, 1518, 50 N.Y.S.3d 196 [2017] ; comparePeople v. Williams, 50 N.Y.2d at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 ; People v. Dickson, 58 A.D.3d 1016, 1017, 872 N.Y.S.2d 216 [2009], lv denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 [2009] ). Accordingly, County Court should have provided a jury charge for temporary and lawful possession such that defendant is entitled to a new trial.

To be sure, the exclusion of any mens rea element from subdivision (1) of section 265.01, despite its presence in other subdivisions, supports the People's argument that subdivision (1) imposes strict liability. In addition, there are several judicial decisions that refer to this particular statute as one defining an offense of "strict liability" ( see e.g. People v Saunders, 85 NY2d at 342; People v Simon, 148 Misc 2d 845, 847 [Crim Ct, Bronx County 1990]; People v Davis, 112 Misc 2d at 139; see also People v Messado, 49 AD2d 560). Nevertheless, the prosecution's argument in support of a strict liability reading of Penal Law § 265.

We agree with defendant's argument that a charge on the defense of temporary and innocent possession was required. (People v. Messado, 49 A.D.2d 560.) The court instructed the jury that they should acquit defendant if they found that he possessed the gun only during the struggle or immediately afterwards.

There are a number of cases where no such requirement has been explicitly stated. Most notable are those wherein, as in this case and in People v Whitehead (supra), the defendant has disarmed an assailant or an unlawful possessor of a weapon (see, People v. Almodovar, 62 N.Y.2d 126; People v. Persce, 204 N.Y. 397; People v. Monger, 71 A.D.2d 641; People v. Singleteary, 54 A.D.2d 1088; People v Messado, 49 A.D.2d 560). Clearly, however, the right of possession incident to the disarming of another is highly limited in scope and duration.

The statutes in these jurisdictions are similar to Michigan's, and their courts have also defined weapons possession as a general intent crime. Logan v United States, 402 A.2d 822 (DC App, 1979); People v Messado, 49 A.D. 2d 560; 370 N.Y.S.2d 616 (1975). We think it consistent with the statute's purpose to hold that momentary or brief possession of a weapon resulting from the disarming of a wrongful possessor is a valid defense against a charge of carrying a concealed weapon if the possessor had the intention of delivering the weapon to the police at the earliest possible time.

01 [1]). The People are not required to prove intent as an element of the crime of criminal possession of a weapon as a felony (People v Messado, 49 A.D.2d 560). However, "possession", an essential element, does not turn upon physical handling of the prohibited weapon alone (People v Williams, 50 N.Y.2d 1043, 1045).