People v. Vinniane

— 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. The defendant was charged with murder in the second degree (felony murder). At trial significant evidence was presented which, if found credible by the jury, would have led to an acquittal based on the affirmative defense to felony murder (see Penal Law, § 125.25, subd 3). The court, however, *957instructed the jury in such manner as to allow the jury to think that application of the defense was within their discretion. No authority for such discretion exists. The same charge has recently been condemned in People v Santanella (63 AD2d 744) and thus a reversal is required in this case. The defendant suffered substantial prejudice in view of his reliance upon the defense during his summation. We have considered the defendant’s arguments urging that his statements should have been suppressed and his trial severed, and find them to be without merit. O’Connor, J. P., Rabin, Gulotta and Shapiro, JJ., concur.