Opinion
2015-05-13
The PEOPLE, etc., respondent, v. Tyshaun JACOBS, appellant.
Martin Geduldig, Garden City, N.Y., for appellant. Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R. Sternberg, and Jason R. Richards of counsel), for respondent.
Martin Geduldig, Garden City, N.Y., for appellant. Madeline Singas, Acting District Attorney, Mineola, N.Y. (Tammy J. Smiley, Judith R. Sternberg, and Jason R. Richards of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered March 20, 2012, convicting him of robbery in the first degree (two counts) and robbery in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the verdict was repugnant because the jury found him guilty of robbery in the first degree and robbery in the second degree while acquitting him of murder in the second degree (felony murder) is unpreserved for appellate review, as he failed to raise this issue before the jury was discharged ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280; People v. Boley, 116 A.D.3d 965, 966, 983 N.Y.S.2d 830; People v. Jackson, 101 A.D.3d 1153, 956 N.Y.S.2d 508; People v. Shamsiddeen, 98 A.D.3d 694, 949 N.Y.S.2d 783). In any event, the verdict was not repugnant. “[A] verdict is repugnant only if it is legally impossible—under all conceivable circumstances—for the jury to have convicted the defendant on one count but not the other” ( People v. Muhammad, 17 N.Y.3d 532, 539–540, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. DeLee, 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210). In determining whether a verdict is legally repugnant, the court reviews “the elements of the offenses as charged to the jury without regard to the proof that was actually presented at trial” ( People v. Muhammad, 17 N.Y.3d at 542, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617). “If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case” ( People v. Muhammad, 17 N.Y.3d at 540, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. DeLee, 24 N.Y.3d at 608, 2 N.Y.S.3d 382, 26 N.E.3d 210). Viewing the elements of the offenses as charged to the jury here, the acquittal on the count of murder in the second degree did not negate any of the elements of the robbery counts and, therefore, the verdict was not legally repugnant. To the extent that the defendant's claim is one of factual repugnancy, “factual repugnancy—which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict” ( People v. Muhammad, 17 N.Y.3d at 545, 935 N.Y.S.2d 526, 959 N.E.2d 463; see People v. Abraham, 22 N.Y.3d 140, 146, 978 N.Y.S.2d 723, 1 N.E.3d 797; People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are unpreserved for appellate review ( seeCPL 470.05[2] ) and, in any event, without merit.