Opinion
2013-01-9
The PEOPLE, etc., respondent, v. Melvin BROWN, appellant.
Lisa Lewis, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Julie Du Pont of counsel), for respondent.
Lisa Lewis, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Julie Du Pont of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered March 25, 2011, convicting him of criminal possession of a weapon in the second degree, menacing a police officer, and operating a vehicle without adequate lights, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the jury verdict was repugnant because the jury convicted him of menacing a police officer ( seePenal Law § 120.18), but was unable to reach a verdict on count one of the indictment, which charged him with criminal possession of a weapon in the second degree ( seePenal Law § 265.03[3] ). A verdict shall be set aside as repugnant only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury ( see People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617;People v. Dominique, 36 A.D.3d 624, 625, 831 N.Y.S.2d 85). It 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 ( see People v. Goodfriend, 64 N.Y.2d 695, 697, 485 N.Y.S.2d 519, 474 N.E.2d 1187;People v. Tucker, 55 N.Y.2d at 6, 447 N.Y.S.2d 132, 431 N.E.2d 617;People v. Dominique, 36 A.D.3d at 625, 831 N.Y.S.2d 85). As the Court of Appeals stated in People v. Tucker, “[t]he critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all” (55 N.Y.2d at 6, 447 N.Y.S.2d 132, 431 N.E.2d 617 [emphasis added] ).
Here, the jury was unable to reach a verdict on count one of the indictment, charging the defendant with criminal possession of a weapon in the second degree, which requires proof that the defendant intended to use a weapon unlawfully against another ( seePenal Law § 265.03[3] ). Contrary to the defendant's contention, the elements of the crime of menacing a police officer, of which the defendant was convicted, were not, by definition, negated, since the jury did not return a verdict of not guilty on count one ( see People v. Granston, 259 A.D.2d 760, 761, 688 N.Y.S.2d 172). In any event, in light of the elements of count one and menacing a police officer as charged to the jury, an acquittal on count one would not have negated the elements of the charge of menacing a police officer ( see People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463;People v. Tucker, 55 N.Y.2d at 6, 447 N.Y.S.2d 132, 431 N.E.2d 617;People v. Francois, 85 A.D.3d 813, 814, 925 N.Y.S.2d 529;People v. James, 249 A.D.2d 919, 672 N.Y.S.2d 174).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.