People v. Messado
| Decision Date | 15 July 1975 |
| Citation | 370 N.Y.S.2d 616,49 A.D.2d 560 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Tyrone MESSADO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
B. Manning, New York City, for respondent.
G. Kaiser, New York City, for defendant-appellant.
Before STEVENS, P.J., and MURPHY, LUPIANO, LANE and NUNEZ, JJ.
Judgment, Supreme Court, Bronx County, rendered May 24, 1974, convicting the defendant, after a jury trial, of the crime and possession of a weapon as a felony, reversed on the law and in the interest of justice and a new trial directed.
The defendant, Tyrone Messado, owned a tailor shop and had known Derek Brown (a/k/a Nathaniel Derek Isler) and Leroy Peart, fellow West Indians, for quite some time.
On August 24, 1972, both Brown and Peart entered Messado's shop and Peart asked Messado for the money which he owed. The dispute among the three parties became rather heated, a gun was drawn, and after a struggle for control of the weapon, during which time the gun discharged several times, both Peart and Brown were wounded and Brown ultimately died of these wounds. There was conflicting testimony at the trial as to whether Brown or Messado possessed the gun.
Defendant was indicted for the crimes of murder of Derek Brown, assault in the first degree committed against Leroy Peart, and possession of a weapon as a felony. He was acquitted of all of the crimes submitted for the consideration of the jury but for the crime of possession of a weapon as a felony.
The Trial Court, in charging the jury on the law, charged the defense of justification as to the crimes of violence. The court failed to include in its charge as to the possessory count the instruction that temporary possession of a weapon, properly explained, does not constitute a crime.
The language of the Penal Law (§ 265.05) does not require the People to prove Mens rea as an element of the crime of possession of a weapon as a felony. Nevertheless, if possession is incidental to disarming a wrongful possessor (People v. Persce, 204 N.Y. 397, 402, 97 N.E. 877, 878; Cf. People v. Adler, 2 N.Y.2d 968, 162 N.Y.S.2d 609) or in self-defense (People v. Harmon, 7 A.D.2d 159, 180 N.Y.S.2d 939), the offer of such explanation must be allowed by the Court and the jury must be instructed as to the parameters of the defense being offered (see People v. Furey, 13 A.D.2d 412, 217 N.Y.S.2d 189).
In the case at bar, the initial ownership and...
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State v. Bailey
...lawful possession" on weapons charge where defendant testified that he obtained weapon by disarming attacker); People v. Messado, 49 App.Div.2d 560, 370 N.Y.S.2d 616 (1975) (temporary, innocent possession defense applicable where defendant may have gained possession of weapon by disarming a......
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People v. Small
...possession of a weapon is a strict liability crime requiring no particular mental culpability. [See, e.g., People v. Messado, 49 A.D.2d 560, 370 N.Y.S.2d 616 [1st Dept.1975]; People v. Ansare, 96 A.D.2d 96, 468 N.Y.S.2d 269 [4th Dept.1983]; People v. Newton, 72 Misc.2d 646, 647, 340 N.Y.S.2......
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People v. Williams
...he saw the defendant throw a gun to the ground while struggling with another man who was wielding a knife]; People v. Messado, 49 A.D.2d 560, 560, 370 N.Y.S.2d 616 [1st Dept. 1975] [same error, where the decedent was shot amid "a struggle for control of the weapon" and "(t)here was conflict......
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People v. Mack
...1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ; People v. Legett, 140 A.D.2d 1, 3–4, 531 N.Y.S.2d 559 [1988] ; People v. Messado, 49 A.D.2d 560, 560, 370 N.Y.S.2d 616 [1975] ; see also People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ; People v. Graham, 148 A.D......