
    (July 10, 1975)
    The People of the State of New York, Respondent, v Fred Sackmann, Appellant.
   Judgment, Supreme Court, New York County, rendered on March 22, 1973, convicting defendant, after a jury trial, of the crimes of assault in the first and second degrees and possession of a weapon, unanimously reversed, on the law, judgment vacated and matter remanded for a new trial. The trial court’s failure to charge that justification constituted a defense to the crimes of which defendant was convicted and its failure to properly instruct the jury that the prosecution had the burden of disproving that defense beyond a reasonable doubt deprived defendant of his right to a fair trial on the primary issue raised. "Justification is a 'defense’ (revised Penal Law, § 35.00)—as opposed to an 'affirmative defense’—and 'the people have the burden of disproving such defense beyond a reasonable doubt’ (revised Penal Law, § 25.00)”. (People v Steele, 26 NY2d 526, 528.) Whatever the trial court did say with regard to this defense was indefinite and confusing. Concur—Stevens, P. J., Kupferman, Tilzer, Capozzoli and Lane, JJ.  