People v. Alston, 73 N.Y.2d 921 (1989)

Justification is not a defense to the charge of criminal possession of a weapon; the only defense is temporary innocent possession, while justification may excuse the unlawful use of the weapon.

Summary

Alston was convicted of assault and criminal possession of a weapon after a street fight where he shot the victim. He argued self-defense, claiming the victim attacked him with a gun and screwdriver, and he only used the gun to protect himself after wresting it from the victim. The Court of Appeals held that justification is not a defense to criminal possession of a weapon. The court reasoned that once unlawful possession is established, the crime is complete. While justification can excuse the unlawful *use* of a weapon, it cannot retroactively excuse the unlawful *possession* of it. The court also addressed supplemental jury instructions and missing witness issues.

Facts

William Roche and Alston engaged in a street altercation. Alston fired several shots at Roche, hitting him multiple times. At trial, Alston claimed Roche initiated the attack, first with a gun and then with a screwdriver. Alston testified that he disarmed Roche and fired the weapon in self-defense.

Procedural History

Alston was indicted on charges of attempted murder, first-degree assault (intentional), first-degree assault (reckless), and second-degree criminal possession of a weapon. The trial court dismissed the reckless assault charge. The jury acquitted Alston of attempted murder but convicted him of intentional assault and criminal possession of a weapon. Alston appealed, challenging the jury instructions.

Issue(s)

1. Whether justification is a defense to the charge of criminal possession of a weapon.
2. Whether the trial court erred in its supplemental instructions to the jury by not repeating the justification defense.

Holding

1. No, because justification may excuse the unlawful *use* of the weapon, but not the initial unlawful *possession* of it.
2. No, because the court responded meaningfully to the jury’s inquiry, and the defense counsel did not timely request a reiteration of the justification charge.

Court’s Reasoning

The Court of Appeals reasoned that the essence of illegal conduct under Penal Law sections 265.01-265.05 is the unlawful possession of a weapon. While intent can elevate the severity of the crime, the possession itself must be unlawful. “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.” The court acknowledged the defense of temporary and lawful possession, such as finding a weapon and intending to turn it over to authorities, or taking a weapon from an assailant. However, the court distinguished this from justification, stating, “Justification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it.” The court emphasized that Alston received the benefit of the justification defense in connection with the attempted murder and assault charges. Regarding the supplemental jury instructions, the court found no error because the trial court responded meaningfully to the jury’s specific inquiry about the elements of the crimes charged. The court noted that defense counsel did not request a repetition of the justification charge until after the jury had resumed deliberations, and reiterating the charge at that point might have unduly emphasized the issue. The court also rejected Alston’s other claims of error, finding that the trial court properly denied the request to charge that the screwdriver was a dangerous instrument as a matter of law and that the failure to call Carmen Rivera as a witness did not warrant a missing witness charge because her testimony would have been cumulative. The court stated that under CPL 310.30 the court must “give such requested information or instruction as [it] deems proper.” The court found that “the court possesses some discretion in framing its supplemental instructions but it must respond meaningfully to the jury’s inquiries”.