| People v Townsend |
| 2012 NY Slip Op 03234 [94 AD3d 1330] |
| April 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Pierre L.Townsend, Appellant. |
—[*1] Richard J. McNally Jr., Troy (Gordon W. Eddy of counsel), for respondents.
McCarthy, J. Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.),rendered March 3, 2009, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree.
Following a shooting incident that resulted in the death of defendant's stepuncle (hereinafterthe victim), defendant was indicted for the crimes of murder in the second degree, manslaughterin the first degree and criminal possession of a weapon in the second degree. A jury acquittedhim of murder and manslaughter, but convicted him of criminal possession of a weapon. CountyCourt sentenced defendant, as a second felony offender, to 15 years in prison followed by fiveyears of postrelease supervision. Defendant appeals.
The verdict was not against the weight of the evidence.[FN1]Defendant testified that after he [*2]had words with the victim,defendant's stepbrother handed defendant a handgun. They then went to find the victim to workout their problems. Defendant testified that the victim began charging at him and pulled out agun, causing defendant to run. While running and hearing two shots, defendant pulled out his gunand fired in the direction of those shots without looking. Defendant's stepbrother testified thatwhen defendant took the gun, he stated that he was going to kill the victim. The stepbrother alsotestified that he never saw a weapon in the victim's hands, defendant shot first and the victim ranfrom defendant.
The testimony established, and defendant concedes, that he possessed a loaded and operablefirearm; the issue is whether he intended to use that firearm unlawfully (see Penal Law§ 265.03 [1]). The jury apparently believed that defendant was justified in shooting thevictim, resulting in an acquittal of murder and manslaughter. Nevertheless, intent to use aweapon and use of force "are not the same, and justification, by the very words of the statute(Penal Law § 35.15), is limited to the latter" (People v Pons, 68 NY2d 264, 267[1986]). The weight of the evidence supports a finding that defendant approached the sceneintending to use the gun unlawfully against the victim, thereby establishing his commission ofcriminal possession of a weapon in the second degree, but that defendant's use of forcethereafter—even if only moments thereafter—became justified because hereasonably believed that such force was necessary to protect his own life (see id. at267-268; compare People v Okafore, 72 NY2d 81, 87-88 [1988]; People v Britton, 27 AD3d 1014,1015 [2006], lv denied 6 NY3d 892 [2006]). Thus, the verdict was not against the weightof the evidence.
County Court erred in providing the jury with a written copy of a portion of the jury charge.Pursuant to statute, the court may only provide a copy of pertinent statutes during deliberations ifthe jury requests further instructions and both parties consent to written materials being provided(see CPL 310.30; People v Johnson, 81 NY2d 980, 981-982 [1993]; seealso CPL 310.20). Here, the materials[FN2]were provided at the beginning of deliberations, before the jury had an opportunity to ask forfurther instructions. Additionally, the court did not ask for the parties' consent, as required(see People v Damiano, 87 NY2d 477, 483 [1996]; People v Owens, 69 NY2d585, 590 [1987]). Counsel's silence cannot be considered consent (see People v Damiano,87 NY2d at 484). A violation of the statute is a fundamental error requiring reversal regardless ofwhether defendant demonstrates any actual prejudice (see People v Damiano, 87 NY2d at484-485; People v Owens, 69 NY2d at 591-592; People v Hoffler, 53 AD3d 116, 121-122 [2008], lv denied11 NY3d 832 [2008]; see also People v Miller, 18 NY3d 704, 708-709 [2012]). Thus,defendant is entitled to a new trial.[*3]
In light of our reversal, we need not address defendant'sremaining contentions.
Rose, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Rensselaer County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: Defendant's general motion todismiss did not preserve his challenge to the legal sufficiency of the evidence (see People vFinger, 95 NY2d 894, 895 [2000]), but our weight of the evidence review necessarilyincludes an assessment of whether the elements of the crime are supported by the evidence (see People v Mann, 63 AD3d1372, 1373 [2009], lv denied 13 NY3d 861 [2009]).
Footnote 2: The record does not contain thematerials provided to the jury, but discussions in the transcript make clear that the jury was onlyprovided a portion of the charge. For example, the portions dealing with the justification defensewere not provided. Providing only a portion of the charge creates a risk that the jury will givegreater attention to the instructions it has in writing than those it heard orally (see People vOwens, 69 NY2d 585, 591 [1987]; People v Townsend, 67 NY2d 815, 817 [1986]).