People v Toro (Marcial)

[*1] People v Toro (Marcial) 2003 NY Slip Op 51500(U) Decided on December 4, 2003 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the Official Reports.

Decided on December 4, 2003
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570289/02

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

MARCIAL TORO, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County, rendered June 15, 2001 after a jury trial (Eduardo Padro, J.) convicting him of endangering the welfare of a child (Penal Law § 260.10[1]), and imposing sentence.

PER CURIAM:

Judgment of conviction rendered June 15, 2001 (Eduardo Padro, J.) reversed, as a matter of discretion in the interest of justice, and information dismissed.

Convicted of endangering the welfare of a child, defendant persuasively argues on appeal that the verdict was inconsistent with and repugnant to his acquittal on each of the sexual abuse charges submitted to the jury. "[A]cquittal on the sexual abuse counts, which, as charged, contained an element of 'sexual contact', was conclusive as to the endangering the welfare of a child count, which was also charged to the jury as requiring an identical finding as to the element of 'sexual contact', for which defendant was found guilty" (People v Crane, 242 AD2d 783 [1997]). Notably, the People's trial theory on both the endangerment and sexual abuse counts was identical: that defendant "violated" the complainant by subjecting her to sexual contact (cf., [*2]People v Snead, 302 AD2d 268, 269 [2003]). Although the repugnancy issue was not preserved for appellate review (see, People v Robles, 298 AD2d 106 [2002], lv denied 99 NY2d 584 [2003]), we find it appropriate in the circumstances present to exercise our discretionary
authority to reach the issue in the interest of justice

This constitutes the decision and order of the court.