Opinion
December 4, 1990
Appeal from the Family Court, Bronx County (Virginia Yancey, J.).
Appellant and two others approached Keith Francis and Victor Mercado, 11th grade students, on the street. One of appellant's accomplices asked Keith if he had any money, while appellant held Victor in a chokehold. Keith handed over his wallet to appellant's accomplice.
The issue on appeal is whether appellant could be lawfully convicted of grand larceny in the fourth degree in view of the fact that he was acquitted of robbery. A verdict is inconsistent where acquittal on one crime is conclusive as to a necessary element of the other crime for which defendant was found guilty. (People v. Goodfriend, 64 N.Y.2d 695, 697.) A necessary element of robbery is the use or threatened use of physical force, which is not an element of grand larceny. Speculation contained in the briefs as to the thought processes of the trier of fact is unwarranted (People v. Goodfriend, supra, at 697).
Concur — Ross, J.P., Carro, Milonas, Rosenberger and Asch, JJ.