Opinion
2019-346 W CR
11-19-2020
The PEOPLE of the State of New York, Respondent, v. Rayneisha WILLIAMS, Appellant.
John R. Lewis, for appellant. Westchester County District Attorney (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
John R. Lewis, for appellant.
Westchester County District Attorney (Jill Oziemblewski and William C. Milaccio of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, TERRY JANE RUDERMAN, JJ.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged, in three separate accusatory instruments, with endangering the welfare of a child ( Penal Law § 260.10 [1] ), criminal contempt in the second degree ( Penal Law § 215.50 [3] ) and petit larceny ( Penal Law § 155.25 ). Following a jury trial, defendant was found guilty of endangering the welfare of a child and criminal contempt in the second degree, but not guilty of petit larceny. Defendant subsequently moved to set aside the verdicts pursuant to CPL 330.30 (1), arguing, among other things, that the verdicts were repugnant. By order dated January 3, 2019, the City Court denied defendant's motion. The appeal from the judgments of conviction rendered on January 31, 2019 brings up for review the City Court's denial of defendant's motion.
"[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other" ( People v. Muhammad , 17 NY3d 532, 539-540 [2011] ; see People v. DeLee , 24 NY3d 603, 608 [2014] ). "The rationale for the repugnancy doctrine is that the defendant cannot be convicted when the jury actually finds, via a legally inconsistent split verdict, that the defendant did not commit an essential element of the crime" ( People v. DeLee , 24 NY3d at 608 ; see People v. Muhammad , 17 NY3d at 539 ; People v. Tucker , 55 NY2d 1, 6 [1981] ). Thus, "[i]t 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" ( People v. Brown , 102 AD3d 704, 704 [2013] ; see e.g. People v. France , 172 AD3d 900, 901 [2019] ; People v. Johnson , 159 AD3d 833, 834 [2018] ). In determining whether a verdict is legally repugnant, the court reviews "the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial" ( People v. Muhammad , 17 NY3d at 542 ; see People v. DeLee , 24 NY3d at 608 ; People v. Tucker , 55 NY2d at 6-8 ). "If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" ( People v. Muhammad , 17 NY3d at 540 ; see People v. DeLee , 24 NY3d at 608 ).
Here, viewing the elements of the offenses as charged to the jury, we find that the verdicts acquitting defendant of petit larceny but convicting her of endangering the welfare of a child and criminal contempt in the second degree were not repugnant. The elements of petit larceny as charged are completely different from the elements of endangering the welfare of a child and criminal contempt in the second degree as charged (see People v. Gardner , 164 AD3d 602, 602 [2018] ; People v. Vazquez , 82 AD3d 1273, 1275 [2011] ; People v. Dominique , 36 AD3d 624, 625 [2007] ; People v. Konrad , 13 Misc 3d 135[A], 2006 NY Slip Op. 52037[U] [App. Term, 2d Dept., 9th & 10th Jud. Dists 2006] ). Therefore, the acquittal of petit larceny did not negate any of the elements of endangering the welfare of a child and criminal contempt in the second degree for which defendant was convicted (see People v. Vazquez , 82 AD3d at 1276 ; People v. Rich , 78 AD3d 1200, 1201 [2010] ; People v. Konrad , 13 Misc 3d 135[A], 2006 NY Slip Op. 52037[U] ).
Accordingly, the judgments of conviction are affirmed.
ADAMS, P.J., TOLBERT and RUDERMAN, JJ., concur.