| People v Coville |
| 2010 NY Slip Op 03810 [73 AD3d 1232] |
| May 6, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Miguel L.Coville, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Christopher I. Simser of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered September 5, 2008, upon a verdict convicting defendant of the crime of criminalcontempt in the first degree.
Defendant was indicted with criminal contempt in the first degree (count 1), assault in thethird degree (count 2), endangering the welfare of a child (count 3), and two counts ofharassment in the second degree (counts 4 and 5). The jury found defendant guilty of criminalcontempt in the first degree and not guilty of the other four counts. After the jury had beendischarged, defendant moved to vacate the verdict as inconsistent, which motion County Courtdenied as untimely. Defendant was thereafter sentenced to a prison term of 1½ to 3 years.Defendant now appeals arguing, among other things, that the jury's verdict of guilty of criminalcontempt in the first degree under count 1 was inconsistent with its verdict finding him not guiltyof harassment in the second degree under count 4, and trial counsel was ineffective in failing toraise a timely objection to the inconsistent verdict.
A jury verdict is repugnant or inconsistent when a defendant is convicted of a crime "onwhich the jury has actually found that the defendant did not commit an essential element,whether it be one element or all" (People v Tucker, 55 NY2d 1, 6 [1981]; see People v Onyia, 70 AD3d1202, 1203 [2010]; People v Mendoza, 300 AD2d 824, 824 [2002], lvdenied 99 NY2d 617 [2003]). A claim that a jury verdict is inconsistent or repugnant mustbe made before the [*2]jury is discharged so that the trial courtcan resubmit the case to the jury to obtain a consistent verdict (see People v Alfaro, 66NY2d 985, 987 [1985]; People vMurphy, 66 AD3d 1234, 1236 [2009]; People v St. Paul, 3 AD3d 604, 606 [2004], lvs denied 2NY3d 765 [2004], 5 NY3d 766 [2005]). Because defendant did not raise this issue prior to thejury being discharged, the issue is not preserved for our review. However, we choose to exerciseour interest of justice jurisdiction to take corrective action (see CPL 470.15 [6] [a]).
The charge of which defendant was convicted (criminal contempt in the first degree)contained the same factual allegations as the charge of which defendant was acquitted(harassment in the second degree), as each charge alleged that on June 4, 2007, defendant"subjected [the victim] to physical contact by grabbing her around the neck, holding her againsta wall, and ripping a telephone from her hands." At the time of this incident, a no illegal contactorder of protection was issued against defendant in favor of the victim, who is the mother of hischildren and his former girlfriend. As such, the verdict as to counts 1 and 4 was indeedrepugnant. Therefore, the judgment is reversed and the matter remitted for a new trial on count1.[FN*]
Defendant's remaining contentions either lack merit or are academic.
Spain, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment is reversed, asa matter of discretion in the interest of justice, and matter remitted to the County Court ofCortland County for a new trial on count 1 of the indictment.
Footnote *: Defendant did not raise a doublejeopardy objection in the brief and, thus, we decline to address its applicability here.