People v. Mascitti , 115 A.D.2d 942 ( 1985 )

Judgment affirmed. Memorandum: Viewing the evidence in a light most favorable to defendant (see, People v Steele, 26 NY2d 526, 529), the failure to grant defendant’s request to charge the jury on innocent possession of a firearm does not constitute reversible error. There is no proof in the record showing that defendant had a legal excuse for having the weapon in his possession. He acknowledged that while other people were present in a relatively small room, he became agitated, said he was going to shoot the clock, picked up the gun which he knew contained bullets, aimed it at the clock and pulled the trigger. The gun discharged and a bullet struck the clock. On such evidence, an innocent possession charge was not warranted (see, People v Williams, 50 NY2d 1043).

All concur, except Callahan and Schnepp, JJ., who dissent and vote to reverse and grant a new trial, in the following memorandum.