Opinion
October 20, 1992
Appeal from the Supreme Court, New York County (Richard B. Lowe, III, J.).
Defendant's contention that the verdict is repugnant since, in order to acquit him of the crimes of burglary in the third degree and grand larceny in the third degree, the jury had to find that he did not act in concert with his codefendant, is unpreserved for appellate review, no objection having been taken to the claimed infirmity in those verdicts prior to the discharge of the jury (People v Stahl, 53 N.Y.2d 1048, 1050; People v Cummings, 159 A.D.2d 351, lv denied 76 N.Y.2d 733). In any event, were we to review the repugnancy issue in the interest of justice, we would reject the claim on the merits.
"A verdict is repugnant where a jury with regard to identical underlying circumstances convicts a defendant of one offense while acquitting him or her of another offense whose elements are necessarily included in the offense for which he has been convicted." (People v Jones, 126 A.D.2d 401, 402, citing People v Tucker, 55 N.Y.2d 1.) Here, although each count in the indictment charged defendant with acting in concert, the crimes themselves have differing elements, so that defendant's acquittal of burglary in the third degree and grand larceny in the third degree did not necessarily negate any of the elements of possession of burglar's tools (see, People v Goodfriend, 64 N.Y.2d 695, 697; People v Tucker, supra, at 6-7, 9; People v Jones, supra, at 403-404).
Defendant also seeks a reversal because of the trial court's failure to respond to a jury note. Our review of the record indicates that the elapsed period of time between the submission of the note and the rendering of the verdicts was only 35 minutes, during which time the trial court was engaged in disposing of other calendar matters. Accordingly, "it cannot be said that there is a significant probability of any prejudice to defendant — let alone serious prejudice (see, People v Lourido [ 70 N.Y.2d 428], at 435) — resulting from the court's failure to respond to [the note]." (People v Agosto, 73 N.Y.2d 963, 967.)
Concur — Sullivan, J.P., Carro, Milonas and Kupferman, JJ.