Opinion
February 8, 1993
Appeal from the County Court, Suffolk County (Sherman, J.).
Ordered that the judgment is affirmed.
On the instant appeal, the defendant argues that based on the facts adduced at trial, a conviction of attempted burglary in the second degree was legally impermissible.
We note initially that this argument has not been preserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245).
In any event, this argument is without merit. Based on the facts adduced at trial, it is clear that the defendant could have been convicted of burglary in the second degree. However, the trial court, based on its remarks at sentencing, and "apparently out of an exercise of mercy" (People v Montgomery, 116 A.D.2d 669, 670), acquitted the defendant of that charge and convicted him of only attempted burglary in the second degree. In upholding a conviction under similar circumstances, this Court stated: "It has been widely acknowledged that factual inconsistencies in a verdict, whether it be rendered by Judge or jury, do not constitute a ground for reversal, provided, of course, that the verdict is not repugnant as a matter of law (see, United States v Powell, 469 U.S. 57; Harris v Rivera, 454 U.S. 339; People v Goodfriend, 64 N.Y.2d 695; People v Tucker, 55 N.Y.2d 1; People v Alfaro, 108 A.D.2d 517). In each of these cases, the respective courts recognized that the factual inconsistencies in the particular verdict could reasonably be attributed to an attempt on the part of the trier of fact to exercise leniency towards the defendant. While the exercise of leniency by a Trial Judge, while sitting as a trier of fact, is not to be condoned, `it cannot, of course, be challenged * * * through the appellate process. Like Judge Hand, we do not think that two wrongs equal a right to exculpation on all counts in order to prevent "errors in judicial dialectic" (United States v Maybury, 274 F.2d 899, 908 * * *). As the Supreme Court put it in Harris v Rivera ( 454 U.S. 339, 348, supra), the "Constitution does not prohibit state judges from being excessively lenient"' (People v Alfaro, supra, at p 520). In this same vein, the instant case does not involve a compromise verdict (cf., People v Dugarm, 49 A.D.2d 674) since the Trial Judge's findings of fact clearly support a finding of guilt on the greater crime of robbery in the second degree. Thus, instead of a compromise on the question of guilt, the verdict represents an exercise of leniency by the trier of fact in defendant's favor" (People v Montgomery, supra, at 670). Nor can it be argued that the verdict in this case is repugnant as a matter of law since the elements of burglary in the second degree are not identical to those of attempted burglary in the second degree.
Accordingly, the judgment of conviction is affirmed. Mangano, P.J., Bracken, Sullivan and Balletta, JJ., concur.