Opinion
570289/02.
Decided December 4, 2003.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered June 15, 2001 after a jury trial (Eduardo Padro, J.) convicting him of endangering the welfare of a child (Penal Law § 260.10), and imposing sentence.
Before: Present: SUAREZ, P.J., McCOOE, GANGEL-JACOB, Justices.
Judgment of conviction rendered June 15, 2001 (Eduardo Padro, J.) reversed, as a matter of discretion in the interest of justice, and information dismissed.
Convicted of endangering the welfare of a child, defendant persuasively argues on appeal that the verdict was inconsistent with and repugnant to his acquittal on each of the sexual abuse charges submitted to the jury. "[A]cquittal on the sexual abuse counts, which, as charged, contained an element of `sexual contact', was conclusive as to the endangering the welfare of a child count, which was also charged to the jury as requiring an identical finding as to the element of `sexual contact', for which defendant was found guilty" ( People v. Crane, 242 A.D.2d 783). Notably, the People's trial theory on both the endangerment and sexual abuse counts was identical: that defendant "violated" the complainant by subjecting her to sexual contact ( cf., People v. Snead, 302 A.D.2d 268, 269). Although the repugnancy issue was not preserved for appellate review ( see, People v. Robles, 298 A.D.2d 106, lv denied 99 N.Y.2d 584), we find it appropriate in the circumstances present to exercise our discretionary authority to reach the issue in the interest of justice.