People v. Colon

• Decision Date: 07 June 1979
• Parties: The PEOPLE of the State of New York v. Olga COLON, Defendant.
• Court: New York City Court

Page 439

417 N.Y.S.2d 439

99 Misc.2d 848

The PEOPLE of the State of New York v. Olga COLON, Defendant.

Criminal Court of the City of New York, New York County,

Part Jury I.

June 7, 1979.

Robert M. Morgenthau, Dist. Atty., New York County, Anthony Balsamo, Asst. Dist. Atty., for the People.

Regina Darby, The Legal Aid Society, New York City, for defendant.

MILTON L. WILLIAMS, Judge:

Defendant Olga Colon was charged with Assault in the Third Degree and Criminal Possession of a Weapon in the Fourth Degree, Penal Law §§ 120.00(1) and 265.01(2), respectively. On April 4, 1979, defendant, after a jury trial, was acquitted of the assault charge and found guilty of the weapon charge. She has moved to set aside this verdict pursuant to Criminal Procedure Law § 330.30(1) on the ground that it is fatally inconsistent or repugnant and would require reversal as a matter of law upon appeal.

The incident at issue occurred on the afternoon of June 30, 1977 at approximately 4:00 p. m. Complainant Gonzalez emerged from a pharmacy at 7th Street and Avenue D and set out to cross the street. As he was crossing, a warning was shouted and he jumped back quickly to avoid being hit by a car. The car went up to the corner of 7th and D, turned and parked. The car was driven by defendant Colon. Gonzalez approached the car and informed Colon that he did not want any trouble with her. Apparently there was some prior controversy brewing between them. Gonzalez testified that as he talked to Colon she produced a knife. He concluded the conversation and walked away across the street. Colon got out of the car; Gonzalez looked back and saw her standing next to it. He turned and kept walking away. Someone yelled a warning to Gonzalez. He turned to see Colon approaching him with the knife in her clenched fist and raised to strike. Gonzalez testified that he picked up a stick lying nearby to defend himself and when he did this someone grabbed him from behind. Colon then stabbed him in the left lower abdomen. Gonzalez subsequently broke free and possibly hit Colon with the stick, although he did not recall this certainly.

At the trial on these charges of Assault in the 3rd degree and Criminal Possession of a Weapon in the 4th degree, Gonzalez was the sole witness; Colon did not take the stand. At the closing of the evidence, defendant Colon's counsel requested that a justification charge be included in the jury instruction as the evidence presented seemed to raise this defense. The request was granted in accord with the rule in People v. Steele, 26 N.Y.2d 526, 311 N.Y.S.2d 889, 260 N.E.2d 527 (1970).

The jury subsequently returned a verdict of not guilty of the assault count by reason of their finding that justification did exist. Colon was convicted, however, of the weapon possession charge. Her counsel immediately moved to have the verdict overturned as being fatally inconsistent or repugnant pursuant to CPL § 330.30(1).

The terms "inconsistent" and "repugnant" relative to verdicts are related in that repugnancy is considered to be an extreme and fatally defective degree of inconsistency. Inconsistency per se is not a fatal defect.

Obviously the issue of inconsistency or repugnancy of a verdict can only arise where (the indictment contains) multiple counts (are involved). A basic proposition of law relative to multiple-count indictments is that each count is to be treated as if it were a separate indictment, Dunn v. U. S., 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). It follows, therefore, that verdicts can be inconsistent, that is, there can be some logical improbability implicit in the jury's findings as to the various counts of the indictment. However, another equally fundamental principle of law in this area is that consistency of verdicts is not necessary, Dunn, supra; People v. Hollenbeck, 9 A.D.2d 983, 194 N.Y.S.2d 543 (1959); People v. Luongo, 86 Misc.2d 120, 382 N.Y.S.2d 266 (County Ct. Suffolk Co. 1976). In fact juries have traditionally had the right to reach inconsistent verdicts. People v. Lay, 39 A.D.2d 904, 334 N.Y.S.2d 398 (1972). It is recognized that juries at times convict on some counts but acquit on others, not because they are unconvinced of guilt, but because of compassion or compromise, Dunn, supra. The test for determining what a permissible degree of inconsistency is in a given case is whether there is any rational theory to support the difference in the verdicts (for each count); if so, the verdicts although seemingly inconsistent on the surface will be upheld, People v. Pugh, 36 A.D.2d 845, 321 N.Y.S.2d 504, affd. 29 N.Y.2d 909, 328 N.Y.S.2d 860, 279 N.E.2d 604, cert. den. 406 U.S. 921, 92 S.Ct. 1777, 32 L.Ed.2d 120 (1971). Repugnancy exists only where an indictment charges more than one crime, each of which has identical elements, and a finding of guilt is made on one and not the other, People v. Bullis, 30 A.D.2d 470, 472, 294 N.Y.S.2d 331, 332 (1968).

When the above-stated rules of law are applied to the facts at bar, it becomes apparent that the defense motion must be denied, since the verdict can quite easily be rationally reconciled if reconciliation is necessary at all. The uncontroverted testimony of the sole witness stated that defendant Colon first attempted to seriously injure complainant with her car and failing that immediately pursued him on foot, knife clenched in upraised fist, until she overtook and stabbed him. The attempt to run Gonzalez down and the subsequent pursuit on foot clearly showed the unlawful nature of her intent prior to the stabbing. The issue of justification, on these facts, does not even arise until he picks up a stick immediately before she overtook and stabbed him.

Defense, however, seeks to attack the verdict by denying its rationality, since obviously the two counts do not contain identical elements. Their theory is that because the justification defense was established, it negated not only the assault charge but the weapon count also, reasoning that the use of the...