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A state appellate court Thursday granted a Buffalo man a new trial on a weapons charge because the judge failed to tell jurors that prosecutors had to prove the handgun was operable.

In a unanimous ruling, the five-member Appellate Division of State Supreme Court overturned Harry C. Wesley's June 1987 conviction, faulting Justice Julian F. Kubiniec's handling of the trial.

During his trial, Wesley, who previously served a prison term in an attempted manslaughter case, testified that he took the pistol from men who had just robbed him of a week's salary and was trying to give the weapon to a bar bouncer when he was arrested.

The appellate court also faulted Kubiniec for allowing the jury to hear testimony about Wesley's failure to tell police his alibi. Wesley was arrested July 26, 1986, outside a Broadway bar.

Testimony about Wesley's "silence" should not have been permitted because it unfairly cast doubt on his claims, the appellate court said.

Wesley, 45, is serving a prison term of three to six years in Mount McGregor Correctional Facility, Saratoga County.

Carolyn C. Balowitz, the Buffalo Legal Aid attorney who represented Wesley, said efforts will be made to have him freed on bail once he is returned to Buffalo.

Police arrested Wesley before he had a chance to talk to officers, Mrs. Balowitz said.

Wesley made no attempt to conceal the unlicensed weapon and had a lawful right to have it because he had just taken it from others who had it illegally, Mrs. Balowitz said.

In 1979, Wesley, of Kilhoffer Street, pleaded guilty to attempted first-degree manslaughter in the Feb. 28, 1979 stabbing death of Charles Hodges, 69, of Sycamore Street, during an argument over money. He was sentenced to five to 10 years in prison by State Supreme Court Justice Vincent E. Doyle.

Wesley was paroled in December 1984.

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