Summary
In Cintron, the jury acquitted of assault, where self-defense had been claimed, but chose to convict of possession of the gun with which the assault was said to have been committed.
Summary of this case from People v. RodriquezOpinion
February 26, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 13, 1977, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, indictment dismissed, and case remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The defendant was indicted for assault in the first degree and criminal possession of a weapon in the second degree. He admitted shooting the complainant. The only issue for the jury was whether he did so in self-defense. The jury acquitted him of assault but, nevertheless, convicted him of criminal possession of a weapon in the second degree (possession of a weapon with the intent to use it unlawfully against another). Since the prosecution evidently failed to prove any unlawful intent to injure the complainant and no other evidence of unlawful intent was present in the case, appellant alleges the two verdicts are irreconcilable and cannot stand. We agree. (See, e.g., People v. Perez, 60 A.D.2d 656; cf. People v. Haymes, 34 N.Y.2d 639, 640.) Since there is no conceivable version of the facts which would support such a verdict, the judgment must be reversed and the indictment dismissed. Hopkins, J.P., Titone, Suozzi and Cohalan, JJ., concur.