Opinion
December 8, 1975
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 7, 1974, convicting him of criminal trespass in the third degree and petit larceny, upon a jury verdict, and imposing sentence. Judgment affirmed. Defendant stands convicted under a two-count indictment charging him with the crimes of burglary in the third degree and petit larceny. At the close of the evidence, the trial court submitted the case to the jury and charged the crime of criminal trespass in the third degree as a lesser included offense under the first (or burglary) count. Defendant's contention that the verdicts were inconsistent cannot be sustained, as his trial testimony made out commission of the petit larceny before he entered the structure in which he was found. Moreover, since the verdicts were returned under separate counts of an indictment, consistency between them was not required (see People v Reyes, 38 A.D.2d 921, affd 30 N.Y.2d 881, cert den sub nom. Reyes v New York, 409 U.S. 1110; People v Loewinger, 37 A.D.2d 675, 676, affd 30 N.Y.2d 587; People v Pugh, 36 A.D.2d 845, affd 29 N.Y.2d 909, cert den sub nom. Pugh v New York, 406 U.S. 921; People ex rel. Troiani v Fay, 13 A.D.2d 999, cert den sub nom. Troiani v Fay, 368 U.S. 1003). The verdicts were not repugnant (see People v Tucker, 47 A.D.2d 583; People v Delorio, 33 A.D.2d 350; People v Bullis, 30 A.D.2d 470); nor was the charge on the defense of voluntary intoxication in error (Penal Law, § 15.25). Latham, Acting P.J., Cohalan, Brennan, Munder and Shapiro, JJ., concur.