People v. Cruz

175 A.D.2d 212

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered May 3, 1988, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

It is well settled that a claim that a jury verdict is repugnant is not preserved for appellate review unless an objection is raised before the jurors are discharged, at which time it is still possible to resubmit the matter to them (People v Alfaro, 66 NY2d 985, 987; People v Hill, 161 AD2d 728). Because the defendant did not raise a claim of repugnancy prior to the discharge of the jury, the issue has not been preserved for appellate review.

In any event, the defendant’s claim of repugnancy is without merit. Viewing the elements of the crimes as charged to the jury (see, People v Tucker, 55 NY2d 1, 7), we find that the jury may have found the defendant guilty of assault in the second degree while concluding that he was not guilty of criminal possession of a weapon in the second or third degrees (see, People v Garcia, 52 NY2d 716, affg 72 AD2d 356; People v Hudson, 163 AD2d 418). Thompson, J. P., Eiber, Balletta and Ritter, JJ., concur.