Opinion
02-23-2017
The PEOPLE of the State of New York, Respondent, v. Ricardo ROMAN, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Ellen Dille of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July 9, 2015, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of two to four years, unanimously affirmed.
The verdict convicting defendant of fourth-degree grand larceny but acquitting him of fourth-degree criminal possession of stolen property was not repugnant (see generally People v. Muhammad, 17 N.Y.3d 532, 539, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ), and the court properly denied defendant's application to resubmit the case to the jury. The two crimes have different sets of elements, and in its charge, the court gave each crime's set of elements its own distinct set of definitions. We conclude that given the elements of the two crimes, as charged to the jury in this case, it is theoretically possible for a person to be guilty of the larceny charge while not guilty of the stolen property charge (see People v. Simmons, 142 A.D.3d 884, 885, 39 N.Y.S.3d 128 [1st Dept.2016] ; People v. Buford, 198 A.D.2d 55, 604 N.Y.S.2d 728 [1st Dept.1993], lv. denied 82 N.Y.2d 892, 610 N.Y.S.2d 159, 632 N.E.2d 469 [1993] ). We do not find People v. Johnson, 70 N.Y.2d 964, 525 N.Y.S.2d 834, 520 N.E.2d 552 (1988), affg. 133 A.D.2d 175, 518 N.Y.S.2d 686 (2d Dept.1987) to be controlling authority to the contrary, because its repugnancy analysis is based on, and limited to, the particular jury charge in that case.
SWEENY, J.P., ANDRIAS, MANZANET–DANIELS, GISCHE, WEBBER, JJ., concur.