People v. Bultron , 73 A.D.2d 692 ( 1979 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 13, 1977, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was charged with the crime of murder in the second degree (felony murder). Although defendant testified at trial that he was guilty of the crime charged, his pretrial confession, which was introduced into evidence, potentially set forth the affirmative defense to felony murder contained in subdivision 3 of section 125.25 of the Penal Law. A factual question was presented for the jury’s determination. Under these circumstances, the erroneous charge to the jury that the application of the affirmative defense was discretionary constituted reversible error (see People v Santanella, 63 AD2d 744; People v Vinniane, 70 AD2d 956). We have considered defendant’s other contentions and find them to be without merit. O’Connor, J. P., Mangano, Rabin and Gibbons, JJ., concur.