Opinion
November 26, 1991
Appeal from the Supreme Court, New York County (Allen G. Alpert, J.).
The defendants, seeking money from their victim outside of a bodega, repeatedly punched him and ripped open his pocket. As the victim and his companion, who had come to his aid, tried to walk away, they again were accosted by the defendants who demanded money. This was followed by one of the defendants proceeding to beat the victim in the head with a plywood club, until the club broke, at which time a screw became imbedded in the man's head. Responding police officers took the victims, in separate cars, to canvass the neighborhood. The second victim observed the defendants, walking together a couple of blocks away, identified them, and they were immediately arrested. In the precinct, one of the police officers overheard one defendant state his surprise at the charges, which arose out of what he described as only "a little fight." The second victim identified both defendants as residents of the men's shelter in which he occasionally resided.
Viewing the evidence in the light most favorable to the People and giving due deference to the jury's findings of credibility (People v. Bleakley, 69 N.Y.2d 490, 495; People v. Mosley, 112 A.D.2d 812, 814, affd 67 N.Y.2d 985), the guilt of both defendants was proven beyond a reasonable doubt by legally sufficient evidence. The failure of either defendant to timely challenge the jury's verdict on the basis of inconsistency waives any such claim for review (CPL 470.05; People v. Alfaro, 66 N.Y.2d 985, 987). In any event, we do not find the jury's acquittal of the defendants on charges of attempted robbery in the first degree, but conviction on charges of assault in the second degree, improper, as the elements of the respective crimes are not mutually inconsistent (People v. Tucker, 55 N.Y.2d 1; People v Johnson, 70 N.Y.2d 819).
Concur — Murphy, P.J., Rosenberger, Ellerin and Asch, JJ.