Does Justification Based on Self-Defence Pertain Only to Use of Physical Force and Not to Crime Based on Weapon Possession ?

In People v. McManus (67 NY2d 541, 549) the Court of Appeals stated, "In sum, in a prosecution for depraved indifference murder, or another crime involving the use of force, a charge on justification is warranted whenever there is evidence to support it ... and, if any reasonable view of the evidence would permit the fact finder to decide that the conduct of the accused was justified, an instruction on the defense should be given." the Court of Appeals noted that it had previously rejected a restrictive application of self-defense, and, instead, has permitted the defense to be raised against diverse charges involving the use of force, regardless of the relevant mens rea, including reckless conduct ( People v. McManus, supra, at 547, citing People v. Huntley, 59 NY2d 868, affg 87 AD2d 488). In McManus (supra), the Court of Appeals reiterated its decision in People v. Huntley (supra) that self-defense is applicable to a charge of reckless homicide (Penal Law 125.15 [1]). The Court of Appeals has held that "a defendant is entitled to a charge 'that his conduct might not have been criminal under the circumstances', whenever the defendant claims that 'he engaged in forceful conduct in avoidance of a perceived attack' " (People v. McManus, supra, at 547, citing People v. Padgett, 60 NY2d 142, 146). Penal Law 35.15 "does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful" ( People v. McManus, supra, at 546, cited by People v. Pons, 68 NY2d 264, 267). The grand jurors should have been instructed that if the defendant acted in self-defense, they should find a no true bill for murder and reckless endangerment (see, People v. Castro, 131 AD2d 771). "Justification based on self-defense (Penal Law 35.15) pertains only to the use of physical force (see, People v. McManus, 67 NY2d 541). It does not apply to a crime based on the possession of a weapon, even though an element of the crime is that defendant possessed the weapon with the intent to use it unlawfully against another" ( People v. Pons, 68 NY2d 264, 265, supra). In People v. Almodovar (62 NY2d 126, 130), the Court of Appeals stated that: "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 NY 81; see, also, Penal Law, 265.20; cf. People v. Williams, 50 NY2d 1043). 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 AD2d 412), or that he took it from an assailant in the course of a fight ( People v. Harmon, 7 AD2d 159). 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." In People v. Pons (68 NY2d 264, 266, supra) the Court of Appeals noted that in Almodovar (supra), " 'the only charge defendant was entitled to on the [possession] count of the indictment was temporary innocent possession' " (see, e.g., 1 CJI[NY] 9.65, at 537A-537B). In Pons, the trial court instructed the jury on justification based on self-defense (Penal Law 35.15) as it relates to murder and manslaughter. The jury acquitted the defendant of murder and manslaughter, but found the defendant guilty of criminal possession of a weapon in the second degree (Penal Law 265.03). The Court of Appeals commented in a footnote that the defendant Pons "did not request, and the record would not support, a charge under Penal Law 35.05. Nor did defendant claim on the trial that his gun was licensed or otherwise exempt under Penal Law 265.20" (People v. Pons, at 266, n).