The PEOPLE of the State of New York, Respondent,
Juan ALMODOVAR, Appellant

Court of Appeals of New York
62 N.Y.2d 126 (1984)


 SIMONS, Judge.

 Defendant has been convicted after trial of assault, first degree (intentional assault), and criminal possession of a [p. 129] weapon, second degree, on an indictment which also charged him with attempted murder, second degree, and a second count of assault in the first degree (reckless assault).  The reckless assault count was dismissed by the court during trial and the jury acquitted defendant of attempted murder.  The charges arose out of a street altercation between defendant and William Roche which ended when defendant fired several pistol shots at Roche striking him four times.  Defendant claimed that he acted in self-defense, that Roche had attacked him first with the gun and then with a screwdriver and that he took control of the gun from Roche and used it to protect himself.

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 Defendant's principal claim[ is] . . . that the court erred in refusing to charge justification as a defense to criminal possession . . . .

 The trial court instructed the jury that they should consider the defense of justification as to the first two counts of the indictment charging defendant with attempted murder in the second degree and assault in the first degree but that justification did not apply to count four, criminal possession of a weapon in the second degree.  Instead, the court charged that temporary and lawful possession could result when a person obtains a weapon by wresting it from another who is about to attack him and that such temporary and lawful possession is a defense to a charge of criminal possession of a weapon in the second degree.  Defendant requested that the court charge lawful possession in the language of People v. Pendergraft, 50 A.D.2d 531, 374 N.Y.S.2d 669, i.e., that lawful possession includes possession for the purpose of self-defense.  Since the Penal Law requires an "intent to use the [gun] unlawfully against [p. 130] another" he claimed the instruction was necessary to negate the element of unlawful intent (see Penal Law, § 265.03).

 The essence of the illegal conduct defined in sections 265.01- 265.05 of the Penal Law is the act of possessing a weapon unlawfully.  The crime may be more serious because of the intent with which the defendant acts but unless the possession is other than innocent there is no crime.  Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime (see, e.g., Penal Law, § 120.00, subd. 3;  § 120.05, subds. 2, 4;  § 120.10, subd. 1;  § 160.15, subd. 2;  § 265.35).

 In some circumstances, however, a person may possess an unlicensed or proscribed weapon and still not be guilty of a crime because of the innocent nature of the possession.  This defense of "temporary and lawful" possession applies because as a matter of policy the conduct is not deemed criminal (see People v. La Pella, 272 N.Y. 81, 4 N.E.2d 943;  see, also, Penal Law, § 265.20;  cf. People v. Williams, 50 N.Y.2d 1043, 431 N.Y.S.2d 698, 409 N.E.2d 1372).  For example, a defendant may not be guilty of unlawful possession if the jury finds that he found the weapon shortly before his possession of it was discovered and he intended to turn it over to the authorities (People v. La Pella, supra;  People v. Furey, 13 A.D.2d 412, 217 N.Y.S.2d 189), or that he took it from an assailant in the course of a fight (People v. Harmon, 7 A.D.2d 159, 180 N.Y.S.2d 939).  The innocent nature of the possession negates both the criminal act of possession and the intent with which the act is undertaken when intent is an element of the crime.

 But a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection.  Justification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it (cf. People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795).  Accordingly, the only charge defendant was entitled to on the fourth count of the indictment was temporary innocent possession;  any benefit he was entitled to because of the claim of self-defense pertained to the use [p. 131] of a weapon and he received that when the court charged justification in connection with the counts of attempted murder and assault.

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 Accordingly, the order of the Appellate Division, 93 A.D.2d 1003, 462 N.Y.S.2d 522, should be affirmed.