ing death or other serious physical injury, may be discharged". Courts that have addressed that section have implied that, in order to be a "deadly weapon", a gun must actually be "loaded", as that term is commonly understood ( see, People v. Shaffer, 66 N.Y.2d 663, 664, modfg 105 A.D.2d 863; People v. Hilton, 187 A.D.2d 608, 609, lv denied 81 N.Y.2d 887; People v. Lind, 173 A.D.2d 179, 183-184, affd in part and revd in part on other grounds 79 N.Y.2d 722, cert denied 506 U.S. 1011; People v. Johnson, 169 A.D.2d 498, 500, lv denied 77 N.Y.2d 962; People v. Robertson, 162 A.D.2d 953, 954, lv denied 76 N.Y.2d 863; People v. Kilpatrick, 143 A.D.2d 1, criticized on other grounds in People v. Gray, 86 N.Y.2d 10, 19-20; People v. Shaffer, 130 A.D.2d 949, 950, lv denied 70 N.Y.2d 717; People v. Amato, 99 A.D.2d 495, 496; People v. Elfe, 37 A.D.2d 208, 211; People v. Howard, 37 A.D.2d 178, 179; People v. Madehere, 149 Misc.2d 564, 567; People v. Tracey A., 97 Misc.2d 1053, 1055-1056; but see, People v. Lay, 39 A.D.2d 904, 905). No other construction is possible given the statutory requirements.
The New York courts, therefore, have interpreted the phrase "use the same unlawfully against another" in a literal fashion, so that it encompasses any intended use which is unlawful. See People v. Bracey, 41 N.Y.2d 296, 302, 392 N.Y.S.2d 412, 360 N.E.2d 1094 (1977) (possession with intent to commit robbery); People v. Brinson, 55 A.D.2d 844, 390 N.Y.S.2d 335 (1976) (possession with attempt to commandeer an automobile); People v. Lay, 39 A.D.2d 904, 905, 334 N.Y.S.2d 398 (1972) (possession of an unloaded rifle while fitting it with a silencer). Magistrate Buchwald, to whom Judge Broderick submitted this matter for report and recommendation, correctly interpreted section 265.03.
Further, once the numbers were copied, whether by defendant or by another, defendant then took the inculpatory step of retaining the numbers in his wallet, conventionally a secure location where important information necessary for future activity is kept. Taken together, the factual allegations provide ample basis for concluding defendant had knowledge that the numbers were intended to be used in commission of a crime. Whether such criminal purpose is imminent or future is of no moment, as there is no requirement of law that unlawful intent must be immediate or contemporaneous ( see People v Glenn, 39 AD2d 904 [1st Dept 1972]). Additionally, intent to use the numbers unlawfully is not an element of the offense; rather, the criminal state of mind for this offense is knowledge that the numbers are intended to be used for any crime, at any time, in any place and manner, by any person, none of which have to be specifically alleged or proven.
The Appellate Division, First Department, said, "[I]t is a jury's traditional right to be inconsistent." ( People v Lay, 39 A.D.2d 904.) It was well settled that each count of an indictment was to be treated as if it were a separate indictment and, thus, the consistency of a verdict is unnecessary.
However, another equally fundamental principle of law in this area is that consistency of verdicts is not necessary (Dunn v United States, supra; People v Hollenbeck, 9 A.D.2d 983; People v Luongo, 86 Misc.2d 120). In fact juries have traditionally had the right to reach inconsistent verdicts (People v Lay, 39 A.D.2d 904). It is recognized that juries at times convict on some counts but acquit on others, not because they are unconvinced of guilt, but because of compassion or compromise (Dunn v United States, supra).
Consistency in verdicts is not necessarily required (People v Hallenbeck, 9 A.D.2d 983; People v Sciascia, 268 App. Div. 14, affd 294 N.Y. 927; People v Hovnanion, 16 A.D.2d 818, cert den 373 U.S. 939, rearg den 22 A.D.2d 686). Even where dispositions are inconsistent, it is a jury's traditional right to be inconsistent (People v Lay, 39 A.D.2d 904). "It is well settled that each count of an indictment is to be treated as if it were a separate indictment and that consistency of verdicts is unnecessary.