People v Brown

People v Brown 2013 NY Slip Op 00103 Decided on January 9, 2013 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 9, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
THOMAS A. DICKERSON
PLUMMER E. LOTT, JJ.
2011-04428
(Ind. No. 10783/09)

[*1]The People of the State of New York, respondent,

v

Melvin Brown, appellant.




Lisa Lewis, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Victor Barall, and Julie Du
Pont of counsel), for respondent.


DECISION & ORDER

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 a weapon in the second degree, menacing a police officer, and operating a vehicle without adequate 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 jury convicted him of menacing a police officer (see Penal Law § 120.18), but was unable to reach a verdict on count one of the indictment, which charged him with criminal 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 inherently inconsistent when viewed in light of the elements of each crime as charged to the jury (see People v Tucker, 55 NY2d 1, 4; People v Dominique, 36 AD3d 624, 625). It is necessary to determine whether the defendant's acquittal on one or more of the counts necessarily negated an essential element of another count of which the defendant was convicted (see People v Goodfriend, 64 NY2d 695, 697; People v Tucker, 55 NY2d at 6; People v Dominique, 36 AD3d at 625). As the Court of Appeals stated in People v Tucker, "[t]he critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all" (55 NY2d at 6 [emphasis added]).

Here, the jury was unable to reach a verdict on count one of the indictment, charging the defendant with criminal possession of a weapon in the second degree, which requires proof that the defendant intended to use a weapon unlawfully against another (see Penal Law § 265.03[3]). Contrary to the defendant's contention, the elements of the crime of menacing a police officer, of which the defendant was convicted, were not, by definition, negated, since the jury did not return a verdict of not guilty on count one (see People v Granston, 259 AD2d 760, 761). In any event, in light of the elements of count one and menacing a police officer as charged to the jury, an acquittal on count one would not have negated the elements of the charge of menacing a police officer (see People v Muhammad, 17 NY3d 532, 539-540; People v Tucker, 55 NY2d at 6; People v Francois, 85 AD3d 813, 814; People v James, 249 AD2d 919). [*2]

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).

The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.
MASTRO, J.P., RIVERA, DICKERSON and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court