— Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered October 31, 1989, convicting defendant, after a jury trial, of robbery in the second degree (Penal Law § 160.10 [2] [b]), and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 1-Vi to 15 years, unanimously reversed, on the law, and the indictment dismissed, with leave to the People to re-present the charges of robbery in the second degree (Penal Law § 160.10 [2] [b]) to the grand jury. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30 day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.
*699By indictment filed May 12, 1988, defendant was charged with robbery in the first degree, robbery in the second degree (two counts), and criminal possession of stolen property in the fourth degree. The charges stemmed from a January 2, 1988 gunpoint robbery of complainant, Mota Psukerman. Defendant was arrested on April 30 when the complainant saw him sitting in a pizzeria and notified the police.
The robbery occurred on the afternoon of January 2, 1988, when complainant, a 56-year-old man who walked with a cane, was accosted by two men in the lobby door of his apartment building. He testified that defendant "jumped from behind” the lobby door while pointing a "toy * * * or real [pistol]” at him and threw him against the wall. Complainant further testified that defendant hit him on the head, knocking him to the floor, and then dragged him behind the lobby door where, after kicking him in the back, he began choking him. The second alleged robber fled shortly after the incident began.
At trial, defendant interposed the defense of misidentification. In addition to a stipulation establishing that complainant waited more than a month before reporting that he had seen the robber earlier on the date of the robbery, defendant introduced into evidence police reports containing complainant’s description of clothing and hair length of the robber, and presented the testimony of Olga Oliveras, a licensed haircutter, who stated that the type of haircut she had been giving defendant since 1984 or 1985, did not match the recorded description of "very closely cropped haircut”.
On appeal, defendant argues that it was error for the trial court to have charged, over defense objection, the affirmative defense to robbery in the first degree under Penal Law § 160.15 (4), which states, in pertinent part, that "it is an affirmative defense that [the] pistol * * * was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.” He urges that although the submission of such a charge is intended to benefit a defendant by reducing, in appropriate circumstances, a first degree robbery charge to robbery in the second degree (Penal Law § 160.10 [2] [b]), its effect in this case was to undermine his defense of misidentification. We agree.
A defendant charged with first degree robbery is entitled to the affirmative defense that the gun used was "unloaded or inoperable” when the preponderance of the evidence supports such a claim. (People v Gilliard, 72 NY2d 877, 878; Penal Law *700§ 160.15 [4].) However, where, as here, the Judge instructs the jury on this affirmative defense over defense counsel’s objection — and in the face of defendant’s assertion that he did not commit the crime — the effect of the charge is to weaken defendant’s trial posture. Simply stated, the defense of inoperability of the weapon is intended to lessen the degree of criminality, but it necessarily presupposes the commission of the crime. When a defendant claims that he has been misidentified, such a charge does not serve its ameliorative purpose, but, rather, deflects from his protestations of innocence.
Moreover, a defendant is entitled to establish his own defense, and it is impermissible for the trial court to foist upon him an affirmative defense which, while arguably supportable by the prosecution’s case, is in direct conflict with the course he has charted. (See, People v DeGina, 72 NY2d 768; People v Cofer, 48 AD2d 818.)
Our determination renders moot defendant’s argument of excessive sentence. The sole remaining issue on appeal, which asserts that defendant was deprived of due process by the court’s sealing of the courtroom during its charge to the jury, is rejected in light of People v Colon (71 NY2d 410), which specifically sanctions this procedure. Concur — Carro, Rosenberger, Asch and Kassal, JJ.