Judgment reversed, on the law, and new trial ordered.
Defendant was charged with murder in the second degree (felony murder). At trial the jury was presented with a factual question as to whether defendant established the affirmative defense to felony murder set forth in subdivision 3 of section 125.25 of the Penal Law. An erroneous charge indicated to the jury that the application of the affirmative defense was discretionary. A new trial is therefore required (see...
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