People v. Lebron

• Decision Date: 14 June 2011
• Citation: 85 A.D.3d 944,925 N.Y.S.2d 344,2011 N.Y. Slip Op. 05298
• Parties: The PEOPLE, etc., respondent,v.Howard LEBRON, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 944
925 N.Y.S.2d 344
2011 N.Y. Slip Op. 05298

The PEOPLE, etc., respondent,
v.
Howard LEBRON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 14, 2011.

Jillian S. Harrington, New York, N.Y., for appellant.Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.

[85 A.D.3d 944] Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered March 23, 2010, convicting him of assault in the third degree, criminal possession of a weapon in the fourth degree, and disorderly conduct, upon a jury verdict, and sentencing him to definite terms of imprisonment of one year on the convictions of assault in the third degree and criminal possession of a weapon in the fourth degree, and a definite term of imprisonment of 15 days on the conviction of disorderly conduct, all the terms to be served concurrently. By decision and order on motion dated April 19, 2010, this Court granted the defendant's motion to stay execution of the judgment pending hearing and determination of the appeal.

[85 A.D.3d 945] ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed on the convictions of assault in the third degree and criminal possession of a weapon in the fourth degree from definite terms of imprisonment of one year to definite terms of imprisonment of 90 days; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for further proceedings pursuant to CPL 460.50(5).

The defendant's contention that his acquittal on the count of assault in the second degree (Penal Law § 120.05[2] ), his conviction on the count of assault in the third degree (Penal Law § 120.00[1] ), and his conviction on the count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ) resulted in a repugnant verdict is not preserved for appellate review inasmuch as the defendant did not ask that the charges be resubmitted to the jury ( see People v. Rich, 78 A.D.3d 1200, 1201, 912 N.Y.S.2d 124; People v. Lobban, 59 A.D.3d 566, 566–567, 872 N.Y.S.2d 557). Indeed, the defendant waived this claim when, after the court pointed out the alleged inconsistency, defense counsel asked that the charges not be resubmitted to the jury. Consequently, we do not address the merits of the defendant's claim that the verdict was repugnant....