Majority
p. 861The People of the State of New York, Respondent, v William Benjamin, Appellant.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 14, 1973, convicting him of murder, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Viewing defendant’s trial testimony in the light most favorable to him, as required (People v Steele, 26 NY2d 526 , 529), it is apparent that an instruction to the jury on the defense of justification was called for in this case (see People v Sanza, 37 AD2d 632 ). The failure of the trial court to instruct the jury on this issue requires a reversal and a new trial. The fact
p. 862
that no exception was taken to the charge as given and that no request to charge was made "is of no moment * * * where a [homicide] conviction is founded upon an erroneous charge” (People v Rainey, 34 AD2d 557 ; People v Almond, 37 AD2d 571 ; People v Butts, 14 AD2d 486 ). Latham, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.
Cases cited
- People v. Steele 26 NY2d 526 at 529 p. 861
- People v. Butts 14 AD2d 486 p. 862