Opinion
2017-10438 Ind. No. 289/16
05-08-2019
The PEOPLE, etc., Respondent, v. Xzaviar FRANCE, Appellant.
Stacy Eves, Rockville Centre, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Cristin N. Connell of counsel), for respondent.
Stacy Eves, Rockville Centre, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz and Cristin N. Connell of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
The defendant was charged with various crimes arising from a residential burglary in Williston Park. The jury convicted the defendant of burglary in the second degree ( Penal Law § 140.25 ), and acquitted him of petit larceny ( Penal Law § 155.25 ).
We agree with the Supreme Court that the verdict was not repugnant. A verdict is repugnant when, evaluated only in terms of the elements of the crimes as charged to the jury—and without regard to the evidence as to what actually occurred—acquittal on one count necessarily negates an essential element of a crime of which the defendant was convicted (see People v. Tucker, 55 N.Y.2d 1, 5, 447 N.Y.S.2d 132, 431 N.E.2d 617 ; People v. Brown, 102 A.D.3d 704, 956 N.Y.S.2d 899 ; People v. Dominique, 36 A.D.3d 624, 831 N.Y.S.2d 85 ). Here, as charged to the jury, an element of the charge of burglary in the second degree was that the defendant entered the dwelling with the intent to commit a crime. Since the acquittal on the charge of petit larceny did not negate the element of entry with intent to commit a crime, the acquittal on the charge of petit larceny was not repugnant to the conviction on the count of burglary in the second degree (see People v. Gardner, 164 A.D.3d 602, 602, 78 N.Y.S.3d 689 ).
The defendant's contentions regarding the prosecutor's opening and closing remarks are unpreserved for appellate review (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 828 N.Y.S.2d 274, 861 N.E.2d 89 ) and, in any event, are without merit.
BALKIN, J.P., AUSTIN, LASALLE and IANNACCI, JJ., concur.