People v. Price

129 A.D.2d 745, 514 N.Y.S.2d 505, 1987 N.Y. App. Div. LEXIS 45434

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Nicolai, J.), rendered April 19, 1985, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s failure to assert his claim before the trial court and prior to the discharge of the jury, that the jury’s verdict, acquitting him of robbery in the second degree and robbery in the third degree and convicting him of grand larceny in the third degree, is repugnant, renders that claim unpreserved for this court’s review (see, CPL 470.05 [2]; People v Alfaro, 66 NY2d 985). The claim is, in any event, without merit since the elements of the crimes as charged are not identical, i.e., robbery entails force (see, People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039; People v Jackson, 69 AD2d 823). Nor can it be argued that the alleged factual inconsistency of the verdict and, in this regard, the defendant’s claimed inability to demonstrate this inconsistency because of an inadequate record, furnish a basis for reversal (see, People v Tucker, supra; People v Montgomery, 116 AD2d 669). Mangano, J. P., Bracken, Eiber and Spatt, JJ., concur.