Opinion
Argued October 11, 1979
Decided November 13, 1979
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HORTENSE W. GABEL, J.
Robert M. Morgenthau, District Attorney (Norman A. Bloch and Robert M. Pitler of counsel), for appellant.
Herbert S. Siegal for respondents.
MEMORANDUM.
The order of the Appellate Division should be reversed.
The majority at the Appellate Division reversed defendant's conviction on both counts, assault in the second degree and criminal possession of a weapon in the third degree, for failure of the trial court to give a charge requested by defendant that if the jury found "that the defendant picked up the gun from the ground and then was arrested immediately" he must be found not guilty. This charge was explicitly requested only with respect to the possession counts in the indictment. The failure of the trial court to respond to this request to charge cannot, therefore, under any theory provide a basis for reversal of the assault conviction. It was error to set this conviction aside.
Prior to submitting this requested charge, in response to another request of defendant's attorney the trial court had twice charged the jury that "fleeting or momentary" possession was not sufficient to support a conviction on the possession counts under the Penal Law. Defendant's prior request for a charge on the subject of momentary possession having thus been granted, it was not error for the trial court to decline to give what amounted to a duplicate or cumulative charge on the same subject. Accordingly, the court's failure to charge as requested provided no basis to disturb defendant's conviction on the possession count either.
The reversal at the Appellate Division having been on the law alone, the case must be remitted to that court for determination of the facts (CPL 470.40, subd 2, par [b]). In addition, inasmuch as the disposition at the Appellate Division was predicated on the single issue of law which we hold was erroneously resolved, on remittal the Appellate Division should consider any other legal issues defendant may be entitled and choose to raise.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.