| People v Vargus |
| 2010 NY Slip Op 09172 [79 AD3d 526] |
| December 14, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v LuisVargus, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), and Miller &Wrubel P.C., New York (Jeremy M. Sher of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 17, 2009,convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree andassault in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to4 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The prosecution presented credible evidenceestablishing the element of unlawful intent, and we reject defendant's arguments to the contrary.
The court properly concluded that the jury verdict acquitting defendant of second-degree assaultwhile convicting him of third-degree assault and third-degree weapon possession was not repugnant(see People v Tucker, 55 NY2d 1 [1981]). "It is settled law that repugnancy is analyzed solelyon the basis of the court's instructions, and not on whether a reasonable view of the evidence supportedthe mixed verdict" (People v Kronberg, 277 AD2d 182, 183 [2000], lv denied 96NY2d 785 [2001]). Since, under the court's charge, the jury could have found that defendantpossessed a dangerous instrument that he intended to use unlawfully, but that he injured the victimwithout using it, the verdict was not repugnant, irrespective of whether such a theory had anyevidentiary support (see People vRobinson, 60 AD3d 463 [2009]). In any event, [*2]under theevidence adduced at trial, the jury could have reasonably concluded that defendant sought to injure thevictim by striking him with the object, but actually injured him by kicking him in the face.Concur—Sweeny, J.P., Moskowitz, Renwick, DeGrasse and RomÁn, JJ.