Opinion
2000-04529
Argued February 7, 2002.
July 22, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered April 17, 2000, convicting him of assault in the first degree, unauthorized use of a vehicle in the second degree, criminal contempt in the second degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
Andrew C. Fine, New York, N.Y. (David Crow of counsel; Bryan Kelly on the brief), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, Gwen M. Schoenfeld, and Seth M. Lieberman of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the judgment is modified, on the law, by vacating the defendant's conviction of assault in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on counts 10, 11, and 12 of the indictment.
We agree with the defendant that the evidence was legally insufficient to support his conviction of assault in the first degree (felony assault) (see Penal Law § 120.10). The People failed to establish that the assault was committed in furtherance of the underlying felony of unauthorized use of a vehicle in the second degree (see People v. Williams, 255 A.D.2d 610, 611). Since the defendant was acquitted of all of the other predicate felonies with which he was charged, and the jury was not instructed that it could convict him of felony assault based upon the attempted commission of one of the predicate felonies, his conviction of assault in the first degree must be reversed and that count of the indictment dismissed (cf. People v. Ladson, 209 A.D.2d 640; People v. Butler, 187 A.D.2d 439; People v. Gary, 162 A.D.2d 277; People v. Littlejohn, 83 A.D.2d 856, 857).
Because the jury did not reach a verdict on the counts of the indictment charging the defendant with assault in the second degree (see Penal Law §§ 120.05, [2]) and assault in the third degree (see Penal Law § 120.00), a new trial is required on those counts (see People v. Charles, 78 N.Y.2d 1044, 1047; People v. Nelson, 292 A.D.2d 397; People v. Hubbert, 212 A.D.2d 633, 634-635). The jury was instructed not to consider the counts charging the defendant with assault in the second degree and assault in the third degree if it found him guilty of assault in the first degree. Since those counts were submitted to the jury (cf. CPL 300.40) but not considered, retrial of those counts will not violate double jeopardy principles (see People v. Charles, supra; People v. Jackson, 20 N.Y.2d 440, 446-453, cert denied 391 U.S. 928; People v. Sanchez, 276 A.D.2d 723, 724; People v. Galisia, 276 A.D.2d 712, 713; People v. Gonzalez, 221 A.D.2d 203, 207). Accordingly, a new trial is ordered on counts 10, 11, and 12 of the indictment, charging the defendant with the crimes of assault in the second degree (two counts) and assault in the third degree.
The defendant's remaining contention is without merit.
SMITH, J.P., GOLDSTEIN, McGINITY and H. MILLER, JJ., concur.