People v. Cabrera

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered May 4, 1987, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant, who admittedly shot and killed his brother-in-law, was acquitted of murder in the second degree and manslaughter in the first degree but convicted of unlawfully possessing the weapon he used during the shooting. The defendant’s assertion to the contrary notwithstanding, the trial court did not err when it denied his request that the jury be instructed that temporary and innocent possession of the gun was a defense to the charge of which the defendant was ultimately convicted.

The fact that the evidence supported a claim that the defendant was acting in self-defense during the actual shooting does not excuse the separate act of unlawfully possessing a loaded firearm (see, People v Carrion, 136 AD2d 649). The evidence, viewed in the light most favorable to the defendant (see, People v Steele, 26 NY2d 526, 529), demonstrated that the defendant armed himself in anticipation of a confrontation with his brother-in-law (see, People v Williams, 50 NY2d 1043) and that the defendant shot him 11 times (see, People v DePass, 130 AD2d 586). Therefore, the defendant was not entitled to the requested charge (People v Carrion, supra; People v DePass, supra).

We discern no basis for disturbing the sentence imposed (see, People v Suitte, 90 AD2d 80). Brown, J. P., Kooper, Harwood and Rosenblatt, JJ., concur.