Factual Background: The defendant, Williams, was visiting a friend when he saw a man (Carson) with whom he had past violent encounters, with a companion.  Williams ran back into his friend’s apartment when he saw Carson pull a gun from his pocket.  When his friend refused to call the police, Williams left, accompanied by his friend, who had armed himself.  When his friend reported seeing Carson’s companion in the lobby, Williams took the gun from his friend. Upon seeing Carson with his hand in pocket, as if he was going to shoot, Williams “blacked out” and started wildly shooting, ultimately firing five shots across the lobby, striking Carson and a bystander.  Williams raised a justification defense but was denied a charge on temporary and innocent possession of the weapon.  The jury acquitted him of assault and attempted murder charges, but convicted him of unlawful possession of a weapon. 

Issue Before the Court: Was Williams entitled to a charge on temporary and innocent possession on the ground that he took possession of the weapon with the intent to use it only in self-defense?  

Holding and Reasoning: No, all the judges agree, but for different reasons.  Stein, joined by Fahey, Garcia, and Feinman, agreed that, distinct from the use of a weapon for purposes of self-defense (i.e,  justification), anticipation of a potential confrontation provides no basis for excusing otherwise unlawful possession of a weapon.  Rivera, concurring, accepted that the threat of harm can excuse one’s possession, and that Williams’ history with Carson presented that level of threat.  However, to get the charge, there must also be proof that the weapon was not then used “in a dangerous manner.”  Here, shooting blindly five times was so reckless as to disentitle him to the charge. Wilson, concurring, found that the defense would apply to excuse possession when that possession is occasioned “by an imminent need for self-defense,” but that the facts did not establish an imminent threat. Wilson also stated that, if the danger is imminent, it matters not whether the gun is obtained from disarming the aggressor, or from another source – a suggestion the majority took issue with.  (Judge DiFiore took no part). 

CAL Observes: This decision leaves open questions with respect to this defense that invite further consideration from the Court, e.g., is there an entitlement to the defense when the danger is not merely anticipatory but imminent?  And, if so, must the source of the weapon be an attacker whom the defendant has disarmed? Or if the threat is imminent, might the defense apply even if the defendant received the gun from someone else? 

The case also highlights the very weird NY-specific rule disallowing justification as a defense to weapon possession, underscoring this State’s strong anti-gun policy.  Self defense can excuse using the weapon (and yes, killing someone), but not the possession of the weapon — even if the jury accepts that the defendant was justified. People v. Almodovar, 62 N.Y.2d 126, 130 (1984).  Maybe time to revisit?  

Separate and apart from any future issues, Judge Wilson’s concurrence comprehensively surveys the law relevant to this defense  - useful one-stop shopping for any practitioner.