| People v Harris |
| 2012 NY Slip Op 05892 [98 AD3d 420] |
| August 7, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Harris, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered April 11, 2011, asamended April 27, 2011, convicting defendant, after a jury trial, of criminal sexual act in the firstdegree, sexual abuse in the second degree, and endangering the welfare of a child, and sentencinghim to an aggregate term of eight years, unanimously affirmed.
The verdict was not repugnant, and the court properly denied defendant's application toresubmit the case to the jury for further deliberations. The jury's acquittal of defendant of courseof sexual conduct against a child in the first degree (count one) and course of sexual conductagainst a child in the second degree (count two), while convicting him of sexual abuse in thesecond degree (count three) and criminal sexual act in the first degree (count four), was notrepugnant.
"If there is a possible theory under which a split verdict could be legally permissible, itcannot be repugnant, regardless of whether that theory has evidentiary support in a particularcase" (People v Muhammad, 17NY3d 532, 540 [2011]). Regardless of whether a verdict lacks an evidentiary basis, "factualrepugnancy—which can be attributed to mistake, confusion, compromise ormercy—does not provide a reviewing court with the power to overturn a verdict"(id. at 545). Here, the counts at issue had different requirements regarding defendant'sage, and any evidence presented at trial as to defendant's actual age is immaterial (see People v Richardson, 92 AD3d408, 409 [2012]).
The jury charges for counts one, two, and four all required the People to prove that defendantwas at least 18 years old during certain time periods. However, the time period pertaining tocount four was May 14, 2007 to May 17, 2007, while counts one and two required proof ofconduct spanning at least three months during September 1, 2005 to May 17, 2007. In theabstract, the jury could have consistently found that defendant was 18 years old in the periodapplicable to count four, but had not yet reached that age in the period applicable to counts oneand two, given that the latter period must have included dates prior to May 2007. Furthermore,[*2]the acquittals on counts one and two were consistent with theconviction on count three, since the charge on count three did not include any element regardingdefendant's age. Concur—Saxe, J.P., Catterson, Acosta, DeGrasse and Richter, JJ.[Prior Case History: 32 Misc 3d 479.]