PEOPLE v. PULLEY

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The hearing court properly declined to suppress the defendant's response to the arresting officer's inquiry concerning the location of a gun. The officer's inquiry was justifiable for safety reasons and did not violate the defendant's constitutional right against self-incrimination ( see, New York v Quarles, 467 US 649, 658-659; see also, People v Johnson, 59 NY2d 1014, 1016; People v Perez, 167 AD2d 308, 309; People v Hawthorne, 160 AD2d 727, 728).

However, in instructing the jury on the elements of assault in the first degree, the Supreme Court stated that the victim's gunshot wound constituted a serious physical injury. This instruction impermissibly removed an element of the crime charged from the jury's consideration ( see, Penal Law § 120.10; see generally, People v Flynn, 79 NY2d 879, 881; People v Greene, 221 AD2d 559). Accordingly, under these circumstances the defendant is entitled to a new trial.