| People v Wilson |
| 2019 NY Slip Op 05299 [173 AD3d 1853] |
| June 28, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Taurean L. Wilson, Appellant. |
Thomas L. Pelych, Hornell, for defendant-appellant.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered June29, 2016. The judgment convicted defendant, upon a jury verdict, of conspiracy in the fourthdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofconspiracy in the fourth degree (Penal Law § 105.10 [1]). Defendant's convictionstems from an incident in which he and three codefendants drove from New Jersey and parkedtheir vehicle near a mobile home in Bath at approximately 4:30 a.m. The resident of the mobilehome, hearing the unusual sound of car doors closing outside her residence, called the police.When the police arrived less than two minutes later, defendant and codefendants fled and wereapprehended shortly thereafter. The police later found, inter alia, an airsoft pellet gun, headcoverings, gloves, and garbage bags in the area near where defendant was apprehended.
Defendant contends that the verdict is repugnant because the jury acquitted him of attemptedburglary in the second degree. We reject that contention. " '[A] conviction will bereversed [as repugnant] only in those instances where acquittal on one crime as charged to thejury is conclusive as to a necessary element of the other crime, as charged, for which the guiltyverdict was rendered' " (Peoplev Madore, 145 AD3d 1440, 1441 [4th Dept 2016], lv denied 29 NY3d 1034[2017], quoting People v Tucker, 55 NY2d 1, 7 [1981], rearg denied 55 NY2d1039 [1982]; see generally People vMuhammad, 17 NY3d 532, 538-541 [2011]). If "there is a possible theory under which asplit verdict could be legally permissible, it cannot be repugnant, regardless of whether thattheory has evidentiary support in a particular case" (People v DeLee, 24 NY3d 603, 608 [2014] [internal quotationmarks omitted]). Upon reviewing the elements of the two crimes as charged to the jury (seeid.), we conclude that the verdict of guilty of conspiracy in the fourth degree is not repugnantto the acquittal of attempted burglary in the second degree (see People v Gary, 115 AD3d 760, 761 [2d Dept 2014], affd26 NY3d 1017 [2015]; People vWilliams, 146 AD3d 821, 822 [2d Dept 2017], lv denied 29 NY3d 1088 [2017]).Conspiracy in the fourth degree "is an offense separate and distinct from the crime" of attemptedburglary in the second degree (People v Bavisotto, 120 AD2d 985, 986 [4th Dept 1986],lv denied 68 NY2d 912 [1986], cert denied 480 US 933 [1987]), and the twocrimes have "different basic elements" (People v Smith, 61 AD2d 91, 98 [4th Dept1978]).
We reject defendant's contention that the evidence is legally insufficient to establish that anagreement existed between defendant and his codefendants to commit burglary in the seconddegree. "A conspiracy consists of an agreement to commit an underlying substantive crime (here,[burglary in the second degree]), coupled with an overt act committed by one of the conspiratorsin furtherance of the conspiracy" (Peoplev Caban, 5 NY3d 143, 149 [2005]; see Penal Law §§ 105.10[1]; 105.20). An "agreement[, either express or implied,] may be established inferentially bycircumstances indicating that defendant engaged in a common effort or acted in concert withothers to achieve a common goal" (People v Givens, 181 AD2d 1031, 1031 [4th Dept1992], lv denied 79 NY2d 1049 [1992]; see generally People v Reyes, 31 NY3d 930, 931 [2018]; People v Smoke, 43 AD3d 1332,1333 [4th Dept 2007], lv denied 9 NY3d 1039 [2008]). Viewing the evidence in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that " 'there is a valid line of reasoning and permissible inferences from which arational jury could have found [an agreement to commit burglary in the second degree] beyond areasonable doubt' " (People vDanielson, 9 NY3d 342, 349 [2007]). In addition, viewing the evidence in light of theelements of the crime as charged to the jury (see id.), we reject defendant's contentionthat the verdict is against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]). Present—Whalen, P.J., Centra, Lindley, DeJoseph and Troutman,JJ.