People v. Fuller

Appellate Division of the Supreme Court of New York

People v. Fuller

276 A.D.2d 263, 714 N.Y.S.2d 200, 2000 N.Y. App. Div. LEXIS 9853

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2000

StatusPublished

This text of 276 A.D.2d 263 (People v. Fuller) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fuller, 276 A.D.2d 263, 714 N.Y.S.2d 200, 2000 N.Y. App. Div. LEXIS 9853 (N.Y. Ct. App. 2000).

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Opinion

Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered June 17, 1997, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of SVa to 7 years, unanimously affirmed.

By consenting to acceptance of a partial verdict of guilty of assault in the third degree, along with a mistrial and retrial on the charge of assault in the second degree, defendant waived his present double jeopardy claims (see, People v Ferguson, 67 NY2d 383, 388; see also, People v Allen, 86 NY2d 599). In any event, since the jury explicitly failed to agree on the greater offense (as opposed to remaining silent thereon), its guilty verdict on the lesser included offense did not operate as an acquittal of the greater offense for purposes of constitutional double jeop[264]*264ardy (Richardson v United States, 468 US 317, 322-326). To the extent that defendant is claiming that his conviction of the lesser offense is nevertheless “deemed an acquittal” of the greater pursuant to CPL 300.50 (4), that claim, aside from being waived as noted previously, is unpreserved (see, People v Dodson, 48 NY2d 36), and we decline to review it in the interest of justice. We have considered and rejected defendant’s remaining claims. Concur — Williams, J. P., Tom, Ellerin, Rubin and Saxe, JJ.

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Judgment, Supreme Court, New York County (John Stackhouse, J.), rendered June 17, 1997, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of SVa to 7 years, unanimously affirmed.

By consenting to acceptance of a partial verdict of guilty of assault in the third degree, along with a mistrial and retrial on the charge of assault in the second degree, defendant waived his present double jeopardy claims (see, People v Ferguson, 67 NY2d 383, 388; see also, People v Allen, 86 NY2d 599). In any event, since the jury explicitly failed to agree on the greater offense (as opposed to remaining silent thereon), its guilty verdict on the lesser included offense did not operate as an acquittal of the greater offense for purposes of constitutional double jeop[264]*264ardy (Richardson v United States, 468 US 317, 322-326). To the extent that defendant is claiming that his conviction of the lesser offense is nevertheless “deemed an acquittal” of the greater pursuant to CPL 300.50 (4), that claim, aside from being waived as noted previously, is unpreserved (see, People v Dodson, 48 NY2d 36), and we decline to review it in the interest of justice. We have considered and rejected defendant’s remaining claims. Concur — Williams, J. P., Tom, Ellerin, Rubin and Saxe, JJ.

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Bluebook (online)

276 A.D.2d 263, 714 N.Y.S.2d 200, 2000 N.Y. App. Div. LEXIS 9853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fuller-nyappdiv-2000.

Opinion

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