| People v Johnson |
| 2012 NY Slip Op 01554 [93 AD3d 408] |
| March 1, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v TedJohnson, Appellant. |
—[*1] Ted Johnson, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (David C. Bornstein of counsel), forrespondent.
Judgment, Supreme Court, New York County (Thomas A. Farber, J.), rendered December 7,2010, convicting defendant, after a jury trial, of forcible touching, and sentencing him to a termof one year, 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 determinations concerning credibility and identification. Theconduct described by the victim, which was also observed by police officers, met the definitionof forcible touching (see Penal Law § 130.52).
Since defendant did not make a timely objection to the jury's mixed verdict, he did notpreserve his claim that the verdict was repugnant, and we decline to review it in the interest ofjustice. A repugnancy claim can only be preserved by way of an application made after theverdict is rendered, but before the jury is discharged, when it is still possible to remedy anydefect by resubmitting the charges (see People v Alfaro, 66 NY2d 985 [1985]; Peoplev Satloff, 56 NY2d 745, 746 [1982]; People v Stahl, 53 NY2d 1048, 1050 [1981]).There is no merit to defendant's suggestion that the preservation requirement was satisfied byevents occurring at stages of the proceedings other than the rendition of the verdict. As analternative holding, we find that the verdict was not repugnant. "If there is a possible theoryunder which a split verdict could be legally permissible," as charged to the jury, the verdict"cannot be repugnant, regardless of whether that theory has evidentiary support in a particularcase" (People v Muhammad, 17NY3d 532, 540 [2011]).
The court properly denied defendant's speedy trial motion. The periods of delay at issue werecorrectly excluded as resulting from pretrial motions, including the time that the motions wereunder consideration by the court (see CPL 30.30 [4] [a]), regardless of whether a validaccusatory instrument was in place at the time (see People v Worley, 66 NY2d 523[1985]).
We have considered and rejected defendant's remaining claims. Concur—Gonzalez,P.J., Sweeny, Moskowitz, Renwick and Richter, JJ.[*2]
Motion to file a pro se supplemental reply brief granted.