Opinion
2001-07774.
July 19, 2004.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered August 8, 2001, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Before: Santucci, J.P, Schmidt, Townes and Rivera, JJ., concur.
The jury verdict finding the defendant guilty of assault in the first degree and acquitting him of criminal possession of a weapon in the fourth degree is not repugnant. Viewing the verdict in light of the elements of the crimes as charged to the jury ( see People v. Green, 71 NY2d 1006, 1008; People v. Tucker, 55 NY2d 1, 7), the jury could have convicted the defendant of assault based upon his participation in the attack on the complainant under an acting-in-concert theory, yet acquitted him of criminal possession of a weapon because he did not physically possess or exercise dominion or control over the knife ( see People v. Olcan, 143 AD2d 369).