Opinion
March 29, 1999
Appeal from the judgment of the County Court, Nassau County (Honorof, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the jury verdict was repugnant is unpreserved for appellate review since he did not make this claim before the jury was discharged ( see, People v. Alfaro, 66 N.Y.2d 985, 987; CPL 470.05). In any event, the contention is without merit. A verdict shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury ( see, People v. Bebee, 210 A.D.2d 243, 244; People v. Tucker, 55 N.Y.2d 1, 4). It is necessary to determine whether the defendant's acquittal on one or more of the counts necessarily negated an essential element of another count of which the defendant was convicted ( see, People v. Bebee, supra; People v. Goodfriend, 64 N.Y.2d 695, 697; People v. Govan, 206 A.D.2d 388; People v. Stitt, 201 A.D.2d 593). As stated by the Court of Appeals in the seminal case of People v. Tucker ( 55 N.Y.2d 1, 6, supra), "The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all" (emphasis supplied). In this case, the jury was unable to reach a verdict on the counts of attempted murder in the second degree, criminal use of a firearm in the first degree, and assault in the second degree. Thus, the elements of the crimes of criminal possession of a weapon in the second degree and burglary in the second degree, of which the defendant was convicted, were not, by definition, negated, since the jury did not return a verdict of not guilty on the other counts.
Viewing the evidence in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict is not against the weight of the evidence ( see, CPL 470.15).
S. Miller, J. P., Santucci, Krausman and Luciano, JJ., concur.