Opinion
November 10, 1977
Judgment of the Supreme Court, Bronx County, rendered January 16, 1976, convicting defendant of the crimes of murder in the second degree and possession of a weapon as a felony and sentencing him to concurrent terms of 20 years to life and a maximum of seven years, respectively, unanimously reversed, on the law, and as a matter of discretion in the interest of justice, the sentences vacated, and a new trial directed on the counts charging those crimes. The failure of the trial court to inform counsel, prior to summation, that it intended to consider the crime of manslaughter in the first degree (which it did consider), was reversible error. (People v Moody, 52 A.D.2d 959; CPL 300.10, subd 3; 300.30, subd 1; 320.20, subd 5; see People v Skinner, 57 A.D.2d 785.) In addition, the trial court's failure to consider self-defense was error (Penal Law, § 35.15). There was evidence that, immediately prior to the fatal shooting, deceased stood in the only doorway to the office with knife in hand, insulted and threatened defendant. Because there was no finding that defendant possessed a weapon prior or subsequent to the shooting, we leave to the trial court the disputed issue as to whether defendant was in possession of a weapon at a time other than the shooting, in which event the possession charge would not be a lesser included charge (CPL 300.40, subd 3, par [b]) and thus not subject to dismissal (see People v Ridout, 46 A.D.2d 643; People v Colon, 46 A.D.2d 624). In view of this disposition, there is no need to discuss the other points raised by defendant.
Concur — Lupiano, J.P., Birns, Lane and Markewich, JJ.