People v. Johnson

70 N.Y.2d 819 (1987)

The People of the State of New York, Respondent, v. Henry Johnson, Appellant.

Court of Appeals of the State of New York.

Decided November 12, 1987.

Linda A. Stagno and Philip L. Weinstein for appellant.

John J. Santucci, District Attorney (Randi Fleishman of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

*820MEMORANDUM.

The order of the Appellate Division should be affirmed.

Defendant was charged with robbery in the first degree (Penal Law § 160.15 [3]) on the theory that he forcibly stole the complainant's motor scooter and, in the course of that act, used or threatened the use of a knife. He was also charged with related offenses including criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) for possessing a knife. In its instructions, the trial court instructed that to convict defendant of first degree robbery the jury had to find that the People had proved that defendant forcibly stole property and used or threatened the immediate use of a knife. The court further instructed the jury that to convict defendant of fourth degree weapon possession, it had to find that the People had proved that defendant knowingly and unlawfully possessed a knife with the intent to use it unlawfully against another. Following deliberations, the jury convicted defendant of the robbery count and acquitted him of the weapon possession count.

Examined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case, the jury's verdict was not repugnant (see, People v Hampton, 61 N.Y.2d 963; People v Tucker, 55 N.Y.2d 1, rearg denied 55 N.Y.2d 1039). By convicting defendant of robbery, the jury of necessity found that he either used or threatened the *821 immediate use of a knife. The finding that defendant threatened immediate use of a knife, however, is not repugnant to a finding that defendant himself did not actually possess a knife. Applying the law as it was charged in this case, the jury was entitled to find that defendant may not have possessed a knife, and yet did threaten to use one.

Defendant's remaining contention has not been preserved.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.