New York Criminal Lawyer Blog
The Facts:
Defendant, his brother, and another man entered the house of a woman and robbed her at gunpoint. A New York Criminal Lawyer said the woman identified defendant as the one who wielded the gun during the robbery. A police officer was on patrol when he saw three men run out of the woman’s house, followed by her screaming for help. The officer gave chase and managed to arrest the brother, who was found to have a loaded revolver in his front pocket. The brother provided defendant’s name and stated that the defendant had placed the gun in his pocket while they fled the woman’s residence.
Thereafter, defendant was arrested at his home. Upon arrest, defendant stated that the arresting officers got nothing on him and that they got the gun of his brother.
The seized revolver was tested and found operable.
Defendant presented evidence to show that it was not him but a third man who displayed the gun during the robbery and then placed it in his brother’s pocket.
Defendant was charged as principal and accomplice on six counts: 3 counts of robbery in the first degree – forcibly steals property armed with a deadly weapon, used or threatened use of a dangerous weapon, and displayed what appeared to be a handgun, respectively; 1 count of robbery in the second degree – forcibly steals property aided by another person actually present; grand larceny in the third degree – steals property taken from the person of another; and criminal possession of a weapon in the third degree – possession of a loaded firearm, a handgun crime or felony.
Defendant was convicted on 1 count of robbery in the first degree, 1 count of robbery in the second degree and criminal possession of a weapon in the third degree. He was acquitted on the 2 counts of robbery in the second degree.
Defendant moved to set aside the guilty verdicts as repugnant to the acquittals on the 2 counts of robbery in the second degree.
A New York Criminal Lawyer said the jury had been instructed not to reach a verdict on the grand larceny charge if they convicted on any of the first four counts of robbery and criminal possession, thus, no claim of repugnancy was made on the basis of that differing result.
The Supreme Court ruled that there was no repugnancy between the verdicts on the robberies but that a guilty verdict on count criminal possession was repugnant to acquittal on the 2 counts of robbery in the first degree. The trial court reasoned that each of the robbery counts involved different elements so that one could be found guilty or not guilty on the various charges without any inconsistency. However, that court continued, it is illogical to acquit on the 2 counts of robbery in the first degree, but finds that the defendant possessed a loaded handgun at the time.
Consequently, the jury’s verdict was sustained except as to criminal possession, which was set aside.
The Appellate Division unanimously affirmed the decision, without opinion.
On appeal, defendant argues that the jury’s acquittal on the two counts of robbery in the first degree, when considered with the conviction on the charge of criminal possession, must have been based on a determination that no “forcible stealing” occurred; that the verdicts on 1 count of robbery in the first degree and 1 count of robbery in the second degree would have to be rejected as an essential element of each crime would have been negated.
The Ruling:
The court finds that the defendant’s argument is not persuasive.
The problem of repugnant, or inconsistent, verdicts has long plagued the common law. Many jurisdictions precluded any judgment of conviction if the verdicts were inconsistent. A New York Sex Crimes Lawyer commented that American courts have divided on the question, with the majority accepting that the conviction is valid, albeit inconsistent.
Whether verdicts are described as “repugnant” or “inconsistent” is substantively inconsequential and so the two terms are used interchangeably here. The critical concern is that an individual should not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it is one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.
The genesis of repugnancy problems lies in the submission to the jury of alternative theories of guilt, in the form of different counts, based upon the same evidence. The problem often occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced. A New York Drug Possession Lawyer said that he difficulty stems from the jury’s implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime.
Under the rules, there are two approaches for determining whether jury verdicts are repugnant. First, the court would review the record in toto so as to consider all the evidence and discover the underlying basis of the jury’s determination, whereupon the reviewing court can determine the logic or illogic of the verdicts and remedy the repugnancy when it exists. Second, looking to the record only to review the jury charge so as to ascertain what essential elements were described by the trial court; then, the alleged inconsistent verdicts will be harmonized on the basis of the jury charge. Under this approach, a conviction will be reversed only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.
There is a compelling policy reason for preferring the second method of analysis. The first approach, by its very nature, requires the court to intrude into the jury’s deliberative process by speculating on how the jury perceived and weighed the evidence. The court’s reluctance to do so is generally reflected by limiting attacks on jury verdicts to showing improper influence, while excluding for purpose of impeachment “proof of the tenor of deliberations”. The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but has exercised mercy. When the jury has decided to show lenity to the defendant, an accepted power of the jury, the court should not then undermine the jury’s role and participation by setting aside the verdict.
Hence, the record should be reviewed only as to the jury charge. Even that review of the jury charge will be restricted in its scope. It does not contemplate a consideration of the accuracy of the charge. The instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict.
Here, defendant’s convictions for robbery can be affirmed only if there was a basis for distinguishing among the various “weaponry” elements of the 3 counts of robbery and criminal possession. The instructions to the jury closely matched the basic definitions provided by law. The only material discrepancy was that the court did not explain that a conviction on the sixth count would be inappropriate unless the jury found that the gun was operable. Once deliberations begin, the jury may freely reject evidence and exercise its mercy function. It could find, however illogically, that the gun’s capability to fire was not proven. Not having been instructed that the capability to fire is also an essential element of the possession charge, there would be no inherent inconsistency in the acquittals on the 2 counts of robbery in the first degree, both of which require a finding of operability, and the conviction on criminal possession.
As each count is treated separately with the varying burdens and degrees of proof being taken into consideration, there is no incompatibility between the verdicts on the issue of operability. In considering the 2 counts of robbery in the first degree, the jury could conclude that the prosecutor failed to prove beyond a reasonable doubt that the gun was capable of firing, and therefore acquit. The jury could also conclude without self-contradiction that the People had carried its burden in proving that defendant displayed what appeared to be a handgun, necessary to 1 count of robbery in the second degree, but that defendant had failed to prove by a preponderance of the evidence that it was inoperable.
In terms of the essential elements of the underlying charges, the verdicts on 1 count of robbery in the first degree and criminal possession are inconsistent when viewed in light of the convictions on another count of robbery in the first degree and robbery in the second e. Implicit in the robbery convictions was a finding that defendant forcibly stole property. The acquittal on the first count of robbery in the first degree, then, would require that the jury concluded that the prosecutor failed to prove that the gun was either loaded or operable. Thus, a conviction on criminal possession would be legally inconsistent as the jury would have found that the gun was loaded and operable. However, as noted, the jury was not adequately apprised of the legal elements necessary to support a conviction on criminal possession. Henceforth, no actual inconsistency has been presented.
Accordingly, defendant was not entitled to dismissal of the robbery counts.
In addition, defendant argues error to the jury instructions. However, defendant admittedly failed to object to the instruction at trial. Consequently, that issue has not been preserved and the court cannot rule on it.
In all, the order of the Appellate Division is affirmed. When there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury. Review of the entire record in an attempt to divine the jury’s collective mental process of weighing the evidence is inappropriate.
For assistance with issues similar to the above, contact a New York City Criminal Lawyer at Stephen Bilkis & Associates. We provide free consultations with our legal experts. A New York City Possession of a Weapon Lawyer from our firm is willing and ready to assist you with your legal problems.