Opinion
January 11, 1990
Appeal from the Supreme Court, New York County (William Davis, J.).
Defendant, as a matter of law, failed to preserve his claim that the first verdict was not repugnant, and that it was therefore error to resubmit the charges for the jury's reconsideration. Although there is no reason to review in the interest of justice, were we to do so, we would find that defendant's acquittal on the charge of criminal possession of a weapon in the second degree was repugnant to his conviction on the charge of assault in the second degree (see, People v Tucker, 55 N.Y.2d 1, 6-7). The jury's notes concerning the weapons charge did not indicate that the jury intended to acquit defendant of this charge, but that it was confused as to the element of intent necessary to sustain it, which confusion tends to explain the repugnancy of the verdict. Defendant's alternative argument that, in resubmitting the charges, the court should have recharged justification, is not preserved as a matter of law, and we therefore decline to reach it. However, were we to consider it in the interest of justice, we would note the absence of any indications that the jury required reinstruction as to justification.
Concur — Ross, J.P., Milonas, Wallach and Rubin, JJ.