Opinion
October 4, 1994
Appeal from the Supreme Court, New York County (Juanita Bing Newton, J.).
Defendant's convictions of attempted assault in the first degree and reckless endangerment in the first degree are legally inconsistent because they require conflicting mental states for the same acts committed against a single victim (People v Robinson, 145 A.D.2d 184, affd 75 N.Y.2d 879). Since these counts were submitted in the conjunctive rather than in the alternative, the jury was never instructed to choose between these conflicting mental states, and thus defendant is entitled to a new trial as to both of these counts (People v. Gallagher, 69 N.Y.2d 525). In view of this determination, it is unnecessary to decide the issues concerning defendant's request to submit a lesser included offense.
While defendant's conviction of criminal possession of a weapon in the second degree arises from the same incident, it need not be vacated, since it is not "factually related" (People v Cohen, 50 N.Y.2d 908, 911) to the error mandating a retrial of the other counts. On the facts presented, defendant's possession of the weapon with intent to use it unlawfully against another is completely independent from his actual use, if any, of the weapon, and the mental state accompanying such use (People v Pons, 68 N.Y.2d 264, 267-268).
Concur — Murphy, P.J., Ellerin, Ross, Nardelli and Williams, JJ.