| People v Brown |
| 2013 NY Slip Op 00103 [102 AD3d 704] |
| January 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Melvin Brown, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall,and Julie Du Pont of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Garnett, J.), rendered March 25, 2011, convicting him of criminal possession of aweapon in the second degree, menacing a police officer, and operating a vehicle withoutadequate lights, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that the jury verdict was repugnant because the juryconvicted him of menacing a police officer (see Penal Law § 120.18), butwas unable to reach a verdict on count one of the indictment, which charged him withcriminal possession of a weapon in the second degree (see Penal Law §265.03 [3]). A verdict shall be set aside as repugnant only when it is inherentlyinconsistent when viewed in light of the elements of each crime as charged to the jury(see People v Tucker, 55 NY2d 1, 4 [1981]; People v Dominique, 36 AD3d 624, 625 [2007]). It isnecessary to determine whether the defendant's acquittal on one or more of the countsnecessarily negated an essential element of another count of which the defendant wasconvicted (see People v Goodfriend, 64 NY2d 695, 697 [1984]; People vTucker, 55 NY2d at 6; People v Dominique, 36 AD3d at 625). As the Courtof Appeals stated in People v Tucker, "[t]he critical concern is that an individualnot be convicted for a crime on which the jury has actually found that thedefendant did not commit an essential element, whether it be one element or all" (55NY2d at 6 [emphasis added]).
Here, the jury was unable to reach a verdict on count one of the indictment, chargingthe defendant with criminal possession of a weapon in the second degree, which requiresproof that the defendant intended to use a weapon unlawfully against another(see Penal Law § 265.03 [3]). Contrary to the defendant's contention, theelements of the crime of menacing a police officer, of which the defendant wasconvicted, were not, by definition, negated, since the jury did not return a verdict of notguilty on count one (see People v Granston, 259 AD2d 760, 761 [1999]). In anyevent, in light of the elements of count one and menacing a police officer as charged tothe jury, an acquittal on count one would not have negated the elements of the charge ofmenacing a police officer (seePeople v Muhammad, 17 NY3d 532, 539-540 [2011]; People v Tucker,55 NY2d at 6; People vFrancois, 85 AD3d 813, 814 [2011]; People v James, 249 AD2d 919[1998]).[*2]
The sentence imposed was not excessive (seePeople v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Rivera, Dickerson and Lott, JJ., concur.