EIBER, J. (dissenting).

The primary issue presented by this appeal is whether defendant's conviction for insurance fraud in the third degree (Penal Law § 176.10), rendered after a nonjury trial, is repugnant with his simultaneous acquittal of attempted petit larceny (Penal Law § 155.25, 110.00 Penal). The majority is of the opinion that the verdicts are not repugnant. Having reviewed the law concerning repugnant and inconsistent verdicts, I conclude, however, that the verdicts are indeed repugnant and, accordingly, vote to reverse the judgment appealed from and to dismiss the indictment.

The charges against defendant Richard Alfaro arise out of a rather ingenious scheme concocted by his codefendant, David G. Hirsch, the purpose of which was to receive double recovery for property damage sustained in a single accident to a Rolls Royce automobile owned by Hirsch. On February 24, 1981, Hirsch, while driving his Rolls Royce, struck a utility pole owned by the Long Island Lighting Company and caused severe front-end damage to the vehicle. At the time of the accident, Hirsch's vehicle was insured by the Liberty Mutual Insurance Company (hereinafter Liberty Mutual). After the incident, Hirsch filed an accident claim form with Liberty Mutual and a representative of that company was assigned to appraise the damage to the vehicle. On March 16, 1981, the vehicle was inspected and five photographs were taken of the damage. The insurance company inspector concluded that because of the severity of the damage approximately 28 parts had to be replaced and he estimated that the total amount necessary to repair the damage to be approximately $29,000. At the time of this inspection, the odometer on the Rolls Royce registered 22,312 miles. Hirsch eventually received a $25,000 check from Liberty as reimbursement for his claim and an additional $4,000 from the excess insurance carrier.

Sometime after the accident, the Rolls Royce was transported to Alfaro's collision body repair shop in Jackson Heights, Queens County, for repairs. According to Alfaro, he repaired the damaged vehicle to the extent necessary to make it operable without using any new parts, and completed the work in July 1981. Alfaro received $10,000 from Hirsch for his repair work on the vehicle. Neither Alfaro nor Hirsch was able to produce a copy of the repair bill or a certificate of completion for the repairs. At trial, Alfaro explained that he did not issue a certificate of completion in this case because he never reached an agreement with Hirsch's insurer.

On or about May 27, 1981, while the necessary repairs on his Rolls Royce were being performed, Hirsch canceled his automobile insurance policy with Liberty Mutual, even though it was not due to expire until January 21, 1982, and the policy premium had not been increased. Hirsch then applied for a new insurance policy with the Metropolitan Property Insurance Company (hereinafter Metropolitan). In processing Hirsch's application, Metropolitan authorized Carco, an automobile inspection organization, to conduct a visual inspection of Hirsch's automobile. The inspection was performed by Thomas DiBlasi on behalf of Carco at Alfaro's collision repair shop in July 1981. The written report filed by DiBlasi following his alleged inspection indicated that the Rolls Royce was in good physical condition with a mileage reading 22,312 miles. At trial, however, DiBlasi admitted that he never actually saw the Rolls Royce during his July 1981 inspection. Apparently, DiBlasi filled out the Carco inspection form based on photographs of the vehicle as well as information provided by Alfaro. DiBlasi acknowledged that he departed from normal procedures as well as Carco's requirements when he filed an inspection form without actually viewing the vehicle in question.

On December 8, 1981, Hirsch's Rolls Royce was allegedly involved in a second "accident". According to the evidence presented by defendants, on that date Hirsch was traveling on Northern Boulevard in Queens County when an unidentified vehicle forced him off the roadway and into a concrete stanchion which supported an overhead extension of the Grand Central Parkway. Hirsch's vehicle again sustained extensive front-end damage as well as a broken windshield and some rear-end damage. A police officer who was flagged down by Hirsch after the accident occurred observed the damaged vehicle up against the concrete stanchion. He also noticed that the car was not running when he arrived. A short time later, Hirsch telephoned Alfaro's shop and Alfaro, accompanied by one of his employees, responded to the accident site with a tow truck. The damaged vehicle was later transported to Alfaro's collision shop.

On the date of the second "accident", someone contacted Metropolitan on behalf of Hirsch and made a claim for the collision damage to the Rolls Royce. Thereafter, Hirsch supplied Metropolitan with a written accident report, and an MV 104 report which had been filed by him with the New York State Department of Motor Vehicles. Hirsch also made an oral statement via telephone in support of his claim to a Metropolitan representative.

On December 23, 1981, a Metropolitan field appraiser, John Kelly, was assigned to inspect Hirsch's damaged Rolls Royce at Alfaro's premises. During his inspection, Kelly recorded the vehicle's identification number and took four photographs of the vehicle. According to Kelly, Alfaro read the vehicle's odometer and informed him that the registered mileage was 22,312 miles. Kelly was unable to complete the appraisal because he did not have a price list for Rolls Royce parts. Alfaro agreed to obtain the necessary information and contact Kelly. Kelly twice contacted Alfaro after the inspection for the price list but on both occasions, Alfaro said he had not yet obtained the list. Due to the absence of this information, Kelly never made a final estimate of the damage.

Sometime during December 1981, Ann Colleran, the Metropolitan claims representative assigned to handle Hirsch's claim, became suspicious that the Rolls Royce had been involved in a prior accident. Because of her suspicions, Colleran, unbeknownst to Hirsch, contacted the State Insurance Department concerning Hirsch's claim. Thereafter, the Frauds Bureau of the Insurance Department instituted an investigation into the claim. During the investigation, the photographs which had been taken by the Liberty inspector after the first accident were compared with those taken by Mr. Kelly on behalf of Metropolitan in December 1981. Following an expert analysis of both sets of photographs, it was determined that the front-end damage portrayed in the photographs was identical. According to the State's expert, it would have been impossible to duplicate the sustained front-end damage to such an extent by two separate collisions.

In 1982, Alfaro and Hirsch were both indicted on charges of insurance fraud in the first degree (Penal Law § 176.20) and attempted grand larceny in the second degree (Penal Law § 155.35, 110.00 Penal). The indictment essentially alleged that during the period from February 24, 1981 through January 31, 1982, the defendants, while acting in concert with one another committed a fraudulent insurance act and attempted to wrongfully obtain and/or steal property, namely, money, from Metropolitan in excess of $1,500. Alfaro and Hirsch were jointly tried before the court without a jury. Following the trial, the court reserved decision and subsequently rendered its verdict in the form of a memorandum decision in which it concluded, in the first instance, that based on the evidence adduced at trial "there was in fact only one accident and that the alleged second accident was actually staged by defendants Hirsch and Alfaro for the purpose of making a second insurance claim" ( 121 Misc.2d 804, 808). The court, however, also determined that the People had failed to sustain their burden in proving that Hirsch's written statement filed with Metropolitan was meant to be a claim for payment in excess of $1,500 since there had been no proof as to the specific cost of any repairs. In view of the lack of proof on the monetary value of the insurance claim, the court found both defendants guilty of a reduced charge of insurance fraud in the third degree (Penal Law § 176.10). Hirsch was also found guilty of attempted petit larceny. The court, however, dismissed the attempted grand larceny in the second degree charge against Alfaro stating (p 810), "there was no evidence linking him to the attempted larceny". Alfaro was subsequently sentenced to a $1,000 fine upon his conviction of insurance fraud in the third degree.

At the outset, I am constrained to note that, although not urged by the People, following the trial court's rendition of its verdicts, Alfaro did not register any protest to the verdict as to him on the basis of repugnancy and thus, under the dictates of People v Stahl ( 53 N.Y.2d 1048) and its companion cases, which involved repugnant jury verdicts, Alfaro's present challenge to the verdicts on this ground has not "technically" been preserved for appellate review. I am of the opinion, however, that under the circumstances of this case, preservation is unnecessary since even assuming that Alfaro did move to set aside the verdict pursuant to CPL 330.30, the trial court did not have the ability to alter its verdict of acquittal, as such is not a mere "ministerial act" ( see, People v Pastore, 46 A.D.2d 870; see also, People v Carter, 63 N.Y.2d 530, 538).

In People v Tucker ( 55 N.Y.2d 1), the Court of Appeals set forth the definitive standard of review to be applied in determining whether a jury verdict is repugnant as a matter of law. Therein, the Court of Appeals stated ( 55 N.Y.2d 1, 7, supra) that a claim that a jury verdict is repugnant is to be resolved by reviewing "the jury charge so as to ascertain what essential elements were described by the trial court; then, the assertedly inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered (see, Wax, 24 N.Y. L School L Rev, at pp 740-742)". Thus, under this test, the court's review of a claim of repugnancy is strictly limited to the confines of a jury charge, regardless of the legal accuracy of the charge or the particular facts of the case ( see, People v Tucker, supra; People v Goodfriend, 100 A.D.2d 781, affd 64 N.Y.2d 695; People v Zuziela, 98 A.D.2d 161; Lewin, Criminal Procedure, in 1982 Survey of N Y Law, 34 Syracuse L Rev 173, at 204-206). Of importance to the case at bar, the Tucker court made special mention ( 55 N.Y.2d 1, 6-7, n 3, supra) of the fact that: "what is involved in the instant case is only the situation where a jury renders inconsistent verdicts. Different considerations may be present when the trier of fact is the Judge (see United States v Maybury, 274 F.2d 899; Comment, 60 Col L Rev, at pp 1006-1007; Wax, 24 N.Y. L School L Rev at p 736, and n 88). As the issue is not now before this court, there is no occasion to consider it".

Having now been presented with that very issue, I conclude that the appropriate test to be applied in reviewing a claim of repugnancy in verdicts rendered by a judge is to compare the necessary statutory elements of the crimes in issue and determine whether the acquittal on one charge is conclusive as to an element which is necessary to and inherent in a charge on which a conviction has occurred. If so, the conviction must be set aside. This test parallels that set forth in People v Tucker ( supra) in that it is based upon the obvious assumption that a judge "charges" himself or herself in his or her role as trier of fact, in accordance with the relevant statutory authority.

On this point, it is significant to note that there is some authority to support the position that a much broader standard of review than that set forth above should apply when reviewing a nonjury verdict on repugnancy grounds. Such a broader standard would permit a review of the entire record in the case to determine whether the judge's verdict was factually as well as legally consistent. For example, in United States v Maybury ( 274 F.2d 899) the United States Court of Appeals for the Second Circuit, in a majority opinion authored by Judge Friendly, made the point that the policy consideration behind the judiciary's reluctance to disturb a seemingly inconsistent jury verdict does not apply to a verdict rendered by a judge, such policy consideration being that the jury serves as arbiter of the community whose prerogative it is to reach a compromise verdict in order to serve the interest of the community. Similarly, the requirement of unanimity of a jury verdict creates a need for compromise and the jury should be allowed to protect against the excessive zeal of prosecutors by exercising lenity ( United States v Maybury, supra, at p 903). Judge Friendly concluded ( United States v Maybury, supra, at p 903) that: "[N]one of these considerations is fairly applicable to the trial of a criminal case before a judge. There is no `arbitral' element in such a trial. While the historic position of the jury affords ample ground for tolerating the jury's assumption of the power to insure lenity, the judge is hardly the `voice of the country', even when he sits in the jury's place * * * We do not believe we would enhance respect for law or for the courts by recognizing for a judge the same right to indulge in `vagaries' in the disposition of criminal charges that, for historic reasons, has been granted the jury * * * Since we find no experience to justify approval of an inconsistent judgment when a criminal case is tried to a judge, we think logic should prevail". With this premise, the Maybury court reversed a conviction on one count of a two-count indictment on the basis that in view of the evidence in the record, an acquittal on the second count was logically inconsistent with the conviction on the first. In reaching that result, Judge Friendly ruled that the Federal rule enunciated in Dunn v United States ( 284 U.S. 390), which provided that inconsistency in a verdict rendered by a jury does not form a basis for reversal so long as the inconsistency related to separate counts of the accusatory instrument, was inapplicable to cases involving inconsistent nonjury verdicts.

Several recent cases have expressed disagreement with the Maybury rationale. For example, in Harris v Rivera ( 454 U.S. 339), the United States Supreme Court, faced with an apparent factually inconsistent bench trial verdicts involving multiple defendants, expressed the view that inconsistent verdicts rendered by a trial judge do not constitute a fatal irregularity in a finding of guilt. While acknowledging that the apparent inconsistency could "constitute evidence of arbitrariness that would undermine confidence in the quality of the judge's conclusion" ( supra, at p 346), the Supreme Court posited that: "[o]ther explanations for an apparent inconsistency are far more likely. Most apparent is the likelihood that the judge's actual observation of everything that transpired in the courtroom created some doubt about the guilt of one defendant that he might or might not be able to articulate in a convincing manner" ( supra, at p 347). The Supreme Court also acknowledged the possibility that the inconsistency was a result of an exercise of lenity by the trial judge. While refusing to condone a trial judge's exercise of judgment (as opposed to sentencing) lenity, the court noted that such a practice does not create a constitutional violation, stating "[t]he Constitution does not prohibit state judges from being excessively lenient" ( Harris v Rivera, 454 U.S. 339, 348, supra; see also, Haynesworth v United States, 473 A.2d 366 [DC App]; People v O'Malley, 108 Ill. App.3d 823, 831, 439 N.E.2d 998, 1002-1005; United States v West, 549 F.2d 545, 553, cert denied 430 U.S. 956; Commonwealth v Harris, 239 Pa. Super. 603, 360 A.2d 728).

I agree with the latter view insofar as I acknowledge the prerogative of a trial judge, sitting as trier of fact, to render factually inconsistent verdicts, whether such verdicts be a result of an exercise of lenity or due to an unarticulated doubt harbored by the trial judge in regard to the defendant's guilt. In light of this premise, it would accordingly be inappropriate for an appellate court, presented with a claim of repugnant or inconsistent bench trial verdicts, to engage in an analysis and review of the entire record so as to consider all the evidence and determine the underlying rationale of the judge's decision. The Court of Appeals in People v Tucker ( 55 N.Y.2d 1, 7, supra), addressing the issue of inconsistent jury verdicts, noted that: "The problems of second-guessing [the jury] are compounded by the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy * * * When the jury has decided to show lenity to the defendant, an accepted power of the jury * * * the court should not then undermine the jury's role and participation by setting aside the verdict". This reasoning is equally applicable to cases involving inconsistent verdicts rendered by a judge after a nonjury trial. Of course, however, the trial judge's right to exercise lenity, like the jury's, cannot be wielded at the expense of rendering a repugnant verdict; namely, where an acquittal on one charge is conclusive as to an element which is necessary to, and inherent in, a charge on which a conviction has occurred. Such a verdict cannot stand. Thus, it is proposed that by limiting an appellate court's review of a claim of repugnant bench trial verdicts to a comparison and analysis of the relevant statutory elements of the crimes in issue, the aforementioned problems of second-guessing the trier of fact and intruding upon the judge's exercise of lenity would necessarily be avoided while at the same time insuring against the possibility of repugnant nonjury trial verdicts.

Applying this standard of review to the case at bar, I conclude, contrary to the majority, that the rendered verdicts are repugnant. Insurance fraud in the third degree is defined in Penal Law § 176.10 as follows: "A person is guilty of insurance fraud in the third degree when he commits a fraudulent insurance act". The term "fraudulent insurance act" is defined, in relevant part, in Penal Law § 176.05 as follows: "A fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer or purported insurer, or any agent thereof, any written statement as part of, or in support of * * * a claim for payment or other benefit pursuant to an insurance policy for commercial or personal insurance which he knows to: (i) contain materially false information concerning any fact material thereto; or (ii) conceal, for the purpose of misleading, information concerning any fact material thereto" (emphasis added).

The term "larceny" is defined, in pertinent part, in Penal Law § 155.05:

"1. A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.

"2. Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent prescribed in subdivision one of this section, committed in any of the following ways:

"(a) By conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses" (emphasis added).

"Petit larceny" is defined in Penal Law § 155.25 as: "A person is guilty of petit larceny when he steals property".

Reviewing the elements of these crimes, there does not appear to be any logical way that a person could engage in insurance fraud by knowingly and with intent to defraud submitting papers in support of a false claim for payment, without at the same time attempting to commit a larceny. That is, when one submits false papers in support of a claim for payment for his own benefit or that of another, he is concomitantly attempting to commit a larceny by wrongfully obtaining property by false pretenses from the insurer. As a result, in preparing or causing to be prepared false papers in support of Hirsch's claim, Alfaro would have been an accessory to Hirsch in the latter's attempt to take or obtain money from Metropolitan and, therefore, guilty of attempted larceny as well as insurance fraud. The People, and the majority, take the position that the element of intent in the crimes of larceny and insurance fraud is completely different; that is, while the larceny provisions address the wrongful taking of property with the intent to deprive someone of that property, the essence of insurance fraud is the knowing and intentional filing of a false written instrument as part of a claim of insurance. While I acknowledge that the statutory definition of a fraudulent insurance act (Penal Law § 176.05) does not specifically state that the purpose of submitting false papers in support of a claim for payment is to wrongfully take or obtain property from the insurer, that is obviously the intent in any such insurance fraud. Thus, even though the language of the statutes is not the same, the underlying meaning clearly coincides. This conclusion is supported by the legislative history behind the enactment of Penal Law article 176 (L 1981, ch 720). The adoption of that article was proposed by then Governor Carey as part of a series of measures designed to combat insurance fraud. In his memorandum approving Laws of 1981 (ch 720), the Governor stated in relevant part: "The amendments to the Penal Law, particularly the classification of insurance fraud involving pecuniary values in excess of $1,500 as Class D felonies, track the classifications for larcenies and will be an indication by the Legislature that the State will no longer tolerate crime in the insurance field" (Governor's approval memorandum, 1981 N.Y. State Legis Ann, at 384; see also, Hechtman, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 176.15, 176.20 Penal, pp 172-173, 1984-1985 Pocket Part).

In this vein, we note that the case of People v Pisano ( 105 A.D.2d 1156), relied upon by the majority, is distinguishable. Therein, the defendant claimed that his conviction for offering a false instrument for filing in the first degree (Penal Law § 175.35) was invalid since it was inconsistent with, and repugnant to, his acquittal of grand larceny in the second degree (Penal Law § 155.35). The Fourth Department rejected the defendant's contention stating: "Since the two crimes do not have the same elements (see People v Gross, 51 A.D.2d 191, 198) and require a separate and specific intent (see People v McDavis, 97 A.D.2d 302, 304-305), the jury could have found that defendant intended to defraud the State (Penal Law, § 175.35) but did not intend to steal property (Penal Law, § 155.35)" ( People v Pisano, 105 A.D.2d 1156, supra). Clearly, a distinction exists between these two crimes. A person may have a variety of reasons for offering a false instrument for filing separate and apart from an intent to take or obtain property from another which is necessary for a larceny conviction. However, I question what other possible intent a person could have for filing a false written statement in support of an insurance claim for payment other than an intent to wrongfully take or obtain property from an insurance company for his own or another's benefit.

In conclusion, I acknowledge that the trial court apparently sought to exercise leniency towards Alfaro in rendering these verdicts. While the exercise of mercy is within the prerogative of the trier of fact, this inherent power cannot be utilized at the expense of rendering repugnant verdicts. Moreover, I note that I am in agreement with the majority insofar as it contends that factually inconsistent verdicts, rendered by a jury or judge, should not be disturbed since such verdicts generally indicate a desire on the part of the trier or triers of fact to exercise lenity towards the defendant.