Sullivan, J. P., concurs in a memorandum as follows: Although I agree that reversal is in order, I do so only on the limited ground that the particular wording of the affirmative defense charge was prejudicial and constitutes reversible error. I disagree with the majority’s conclusion that charging the affirmative defense, per se, undermined and conflicted with defendant’s defense of misidentification and could not, sua sponte, be charged to the jury over defendant’s objection.
The court charged the jury that "the defendant has raised an affirmative defense”, i.e., that the gun used was unloaded or inoperable and, in giving the charge, referred to "defendant’s contention that the weapon he is charged with having displayed was not loaded, was not operable.” Defendant, in fact, did not raise this defense; rather, he relied solely on the defense of misidentification. Defendant objected not only to the court’s charging the affirmative defense but also to the wording of the charge, which indicated that defendant raised the defense. In view of defendant’s specific objection to this particular aspect of the charge, the prejudice issue is fully preserved.
A defendant is entitled to a charge on an affirmative de*701fense when there is sufficient evidence for a jury to find by a preponderance of the evidence that the elements of the defense are satisfied. (People v Gilliard, 72 NY2d 877, 878.) In my view, such a charge would be proper, defendant’s objection to it notwithstanding, unless it conflicts with the proffered defense. Indeed, a trial court’s failure, sua sponte, to instruct a jury as to an affirmative defense which is expressly written into the statute defining the crime and which finds support in the evidence has been held to constitute reversible error. (See, e.g., People v McLeod, 71 AD2d 930; see also, Penal Law § 160.15 [4].)
The majority, citing People v DeGina (72 NY2d 768), states that it is impermissible to foist upon the defendant an affirmative defense which is in direct conflict with the course he has charted. This principle is inapplicable here, however, since the defense that the gun used in the crime was not loaded or was inoperable does not conflict with the defense of mistaken identity. A defendant can plead both that he did not commit the crime and that the gun used in the crime was inoperable. As long as the two defenses are not inconsistent and a reasonable view of the evidence would support the affirmative defense, a court is within its discretion to include it in the charge. (See, CPL § 300.50.) This is especially true in a case like this where the defense is specifically provided for in the statute the defendant is charged with violating.
Here, the victim testified that he did not know whether the gun used in the crime was a "toy * * * or a real [pistol].” Thus, there is a reasonable view of the evidence that the gun was inoperable. Since an affirmative defense may be premised upon the evidence adduced by the People (People v Willis, 56 NY2d 743), the court was justified in using the victim’s testimony as a basis to charge the defense. The court, however, charged the jury that it was defendant who had raised the defense, was contending that the gun was inoperable and was "pointing] to” certain evidence suggesting that the gun might have been an imitation. Such language, totally unsolicited, had the potential to divert the jury’s attention from the defense actually being raised and to which defendant was pointing. Thus, while reversal is called for, it is only because the particular wording of the charge as to the affirmative defense was prejudicial. *702May 23, 1991 granted to the extent of deleting the decretal (first) paragraph thereof and substituting therefor the following: Judgment, Supreme Court, New York County (Harold J. Baer, Jr., J.), entered April 27, 1990, which, inter alia, granted defendant’s cross-motion for divorce, awarded plaintiff maintenance in the amount of $600 per month commencing upon the signing of the judgment and terminating upon plaintiff’s remarriage or the death of either party, directed defendant to pay pendente lite maintenance arrears and reimbursement for non-elective, non-reimbursed medical and dental expenses, and directed defendant to maintain a policy of health insurance covering all expenses not covered by Medicare, unanimously modified, without costs, on the law, the facts and in the exercise of discretion, to vacate that portion which directed defendant to maintain a policy of health insurance covering all expenses not covered by Medicare and to direct defendant to maintain the most comprehensive policy commercially available to provide plaintiff benefits for medical care, dental care, prescription drugs and related services not covered by Medicare and to further direct that, in addition to maintaining said policy, defendant shall pay for any unreimbursed, non-elective medical, dental, and pharmaceutical expenses incurred by plaintiff subsequent to entry of the judgment and prior to plaintiff’s remarriage or the death of either party, up to the maximum of $3,000 per year, and otherwise affirmed. Concur — Carro, J. P., Milonas, Ellerin and Rubin, JJ.