People v. Wise

157 A.D.2d 503, 549 N.Y.S.2d 695, 1990 N.Y. App. Div. LEXIS 147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1990
• Status: Published

Opinion

Judgment, Supreme Court, New York County (William Davis, J.), rendered April 17, 1987, convicting defendant after a jury trial of assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent prison terms of from 1 to 3 years, lYi to 4Yi years, and 1 to 3 years, respectively, is unanimously affirmed.

Defendant, as a matter of law, failed to preserve his claim that the first verdict was not repugnant, and that it was therefore error to resubmit the charges for the jury’s reconsideration. Although there is no reason to review in the interest of justice, were we to do so, we would find that defendant’s acquittal on the charge of criminal possession of a weapon in the second degree was repugnant to his conviction on the charge of assault in the second degree (see, People v Tucker, 55 NY2d 1, 6-7). The jury’s notes concerning the weapons charge did not indicate that the jury intended to acquit defendant of this charge, but that it was confused as to the element of intent necessary to sustain it, which confusion tends to explain the repugnancy of the verdict. Defendant’s alternative argument that, in resubmitting the charges, the court should have recharged justification, is not preserved as a matter of law, and we therefore decline to reach it. However, were we to consider it in the interest of justice, we would note the absence of any indications that the jury required reinstruction as to justification. Concur—Ross, J. P., Milonas, Wallach and Rubin, JJ.