Opinion
2003-773 N CR.
Decided March 27, 2006.
Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered May 5, 2003. The judgment convicted defendant, upon a jury verdict, of menacing in the second degree. The judgment brings up for review a prior order of the same court denying defendant's presentence motion to set aside the jury's verdict as repugnant ( 195 Misc 2d 520).
Judgment of conviction reversed on the law and accusatory instrument dismissed.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ
A review of the essential elements of the offenses as contained in the court's jury instruction indicates that the jury verdict convicting the defendant of menacing in the second degree (Penal Law § 120.14) and acquitting him of criminal possession of a weapon in the fourth degree (Penal Law § 265.01) was inconsistent ( see People v. Powell, 171 AD2d 1026; People v. Torres, 189 Misc 2d 776 [App Term, 2d 11th Jud Dists 2001]).
The court instructed the jury that in order to find defendant guilty of menacing in the second degree beyond a reasonable doubt, the People were required to prove two essential elements: 1) that defendant placed or attempted to place Police Officer Cardone in reasonable fear of physical injury by displaying a dangerous instrument, and 2) that defendant did so intentionally. The court's jury instructions for the charge of criminal possession of a weapon in the fourth degree set forth four essential elements: 1) that defendant possessed the pickaxe, 2) that the pickaxe was a dangerous instrument, 3) that defendant knowingly possessed a dangerous instrument, and 4) that defendant intended to use the dangerous instrument unlawfully against Officer Cardone.
With respect to the third element of criminal possession of a weapon in the fourth degree, the court further instructed the jury that "a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature described by the statute or that the circumstances set forth in the statute exist." As to the fourth element, the court instructed the jury that "unlawfully means without legitimate goal or purpose."
As the court below properly determined, under the facts herein, defendant "could not possibly display the pickaxe without also possessing it," and "because the term unlawfully' as . . . defined . . . for the jury encompasses any kind of illegitimate conduct, including displaying a dangerous instrument with intent to cause fear, it is . . . impossible for defendant to have displayed the pickaxe with intent to cause fear in Officer Cardone without also possessing it with intent to use it against him unlawfully" ( People v. Gladney, 195 Misc 2d at 523).
The court nevertheless found that the verdict was not repugnant on the ground that the jury charge for criminal possession of a weapon in the fourth degree contained a "discrete element," namely, that defendant knew that the pickaxe was or could be dangerous, and that therefore a verdict of not guilty was inconclusive as to a material element of the crime of menacing in the second degree. The court reasoned that "[a]lthough unlikely, it is nonetheless possible that defendant could display and possess a dangerous instrument with the intent . . . to instill fear . . . without acting knowingly with respect to a particular circumstance . . . here without knowing that the instrument displayed and possessed actually was or actually could be dangerous." ( People v. Gladney, 195 Misc 2d at 524).
However, even assuming, without deciding, that the court's analysis would be correct if the charge contained said "discrete element," a review of the court's jury charge indicates that there was no instruction that an element of criminal possession of a weapon in the fourth degree is that defendant knew that the pickaxe was or could be dangerous. Accordingly, the court's determination that the verdict was not repugnant was improperly predicated upon an element that was not contained in the jury charge with regard to the criminal possession count, and hence was never considered by the jury.
As defendant's acquittal of criminal possession of a weapon in the fourth degree was "conclusive as to a necessary element" of menacing in the second degree ( People v. Tucker, 55 NY2d 1, 7), defendant's conviction of the latter offense is vacated and the accusatory instrument dismissed.
Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.