People v. Grinage

—Judgment unanimously modified on the law and as modified affirmed and new trial granted on counts two and four of the indictment in accordance with the following Memorandum: Supreme Court erred in denying the request of defendant to instruct the jury on the defense of mistake of fact with respect to those counts of the indictment charging murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) and criminal possession of a weapon in the second degree (Penal Law § 265.03) based on his knowing possession of a loaded firearm. Defendant testified that he thought the…