People v. Luongo, 781--74

• Decision Date: 08 April 1976
• Docket Number: No. 781--74,781--74
• Citation: 382 N.Y.S.2d 266,86 Misc.2d 120
• Parties: The PEOPLE of the State of New York, v. Robert A. LUONGO, Jr., Defendant. Indictment
• Court: New York County Court

Page 266

382 N.Y.S.2d 266

86 Misc.2d 120

The PEOPLE of the State of New York, v. Robert A. LUONGO, Jr., Defendant. Indictment No. 781--74.

Suffolk County Court.

April 8, 1976.

Henry F. O'Brien, Dist. Atty. of Suffolk County, Michael H. Ahearn, Riverhead, of counsel.

Shapiro, Somer & Gold, Wyandanch, for defendant.

MEMORANDUM

OSCAR MUROV, Judge.

Following the rendition of a verdict by the jury finding the defendant guilty on fifteen of the twenty-three counts submitted and prior to the imposition of sentence, defendant moves, pursuant to Criminal Procedure Law § 330.30(1) for an order setting aside the verdict for the following reasons:

(1) That the verdict rendered was inconsistent,

(2) That the court's instructions to the jury were contradictory in nature,

(3) That, as a matter of law, the jury was mistaken as to the law or evidence and the verdict was contrary to law and against the weight of evidence, and

(4) For other reasons that will serve the interests of justice.

The substance and thrust of defendant's contentions as they are addressed to each argument in support of this motion and the court's response thereto follow.

INCONSISTENCY OF THE VERDICT

All but one of the counts submitted for the jury's consideration charge the defendant with the crime Grand Larceny in the Second Degree while the single exception in the indictment accuses him of Grand Larceny in the Third Degree. The jury was instructed by the court that in any count charging the Second Degree offense a verdict convicting the defendant of the Third Degree offense would be justified by a finding that there was a reasonable doubt that the amounts stolen exceeded $1500.00 provided the jury found beyond a reasonable doubt that a sum in excess of $250.00 was stolen. In like manner the jury was further instructed that it would be justified in finding the defendant guilty of Petit Larceny as to any count of the indictment if it reasonably doubted that the sum of money stolen as to such count exceeded $250.00.

The verdict returned by the jury found the defendant guilty of thirteen (13) counts of Second Degree Grand Larceny and two (2) counts of the Third Degree offense and acquitted defendant on the eight (8) remaining counts.

It is defendant's contention that his conviction upon six counts which was based upon the acts and conduct of defendant's agents towards various individuals was inconsistent with his acquittal on three counts involving the acts and conduct of the very same agents. In like manner, the defendant also contends that a conviction upon the other nine counts was inconsistent with his acquittal upon five counts inasmuch as the defendant himself dealt with all of the individuals alleged to be victims of fraud in the same way. Based upon these inconsistencies, it is claimed now that the verdict of the jury convicting the defendant upon fifteen counts while acquitting him on eight counts of crimes containing identical elements is repugnant.

Defendant cites four cases in support of this proposition (People v. Blandford, 37 A.D.2d 1003, 325 N.Y.S.2d 486; People v. Andrews, 80 Misc.2d 662, 363 N.Y.S.2d 735; People v. Cimino, 163 App.Div. 217, 147 N.Y.S. 1079; People v. Massett, 55 N.Y. 606, 7 N.Y.S. 839). Blandford involved an altercation between the defendant and a police officer which gave rise to charges of assault, resisting arrest and criminal trespass stemming from the single incident. Andrews, Cimino and Massett likewise treated the question of inconsistent verdicts arising out of a single incident. Only in Massett was the verdict arising out of the single incident set aside as inconsistent. The reason was clear; defendant was the only one of three co-defendants convicted of robbery upon evidence that was precisely the same as to all of the co-defendants.

The Criminal Procedure Law defines 'inconsistent counts' as follows:

'Two counts are 'inconsistent' when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other.' (CPL § 300.30, subd. 5)

'Inconsistency is generally understood to mean some logical impossibility or improbability implicit in the jury's findings Consistency in verdicts is not necessarily required (People v. Hollenbeck, 9 A.D.2d 983, 194 N.Y.S.2d 543; People v. Sciascia, 268 App.Div. 14, 48 N.Y.S.2d 428, aff'd 294 N.Y. 927, 63 N.E.2d 118; People v. Hovnanian, 16 A.D.2d 818, 228 N.Y.S.2d 771, cert. den. 373 U.S. 939, 83 S.Ct. 1544, 10 L.Ed.2d 694 reargument denied 22 A.D.2d 686, 253 N.Y.S.2d 241). Even where dispositions are inconsistent, it is a jury's traditional right to be inconsistent (People v. Lay, 39 A.D.2d 904, 334 N.Y.S.2d 398).

as to the various counts of the indictment.' (18 A.L.R.3d 259, 287)

'It is well settled that each count of an indictment is to be treated as if it were a separate indictment and that consistency of verdicts is unnecessary (Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356; People v. Pierce, 40 A.D.2d 581, 334 N.E.2d 410; People v. Delorio, 33 A.D.2d 350, 353, 308 N.Y.S.2d 131, 134). On the other hand, if 'the indictment charges two crimes, each of which has identical elements, a finding of guilt on one but not the other is truly repugnant, as opposed to being merely inconsistent', and the conviction must be overturned (People v. Bullis, 30 A.D.2d 470, 472, 294 N.Y.S.2d 331, 333; see also People v. Pastore, 46 A.D.2d 870, 361 N.Y.S.2d 681; People v. Pierce, supra).' People v. Gross, 51 A.D.2d 191, 197--198, 379 N.Y.S.2d 885, 893; see also People v. Paczovski, 81 Misc.2d 381, 366 N.Y.S.2d 275).

While it must be conceded that both Blandford and Andrews support the proposition that a verdict is repugnant when the crimes charged have identical elements and the verdict convicts for one had acquits on the other, the principle enunciated in those decisions must be restricted in its application to the facts in those and like cases. Both cases dealt with a single defendant acting in a single episode.

Here the counts relate to different times, dates, places, property and victims. In such a case the presumed inconsistency arising from contrary verdicts upon counts accidentally containing identical elements is readily reconcilable on a rational basis. The same article of the Penal Law was violated on different occasions (see 18 A.L.R.3d pp. 290, 291).

'Where the several offenses charged in a multicount indictment or information involve factual variations, such as different times, dates, places, property, or victims, the finding on one count will not ordinarily be held inconsistent with that on another.'

If there is any rational theory to support the difference in the verdicts, the verdicts although seemingly inconsistent on the surface will be upheld (People v. Pugh, 36 A.D.2d 845, 846, 321 N.Y.S.2d 504, 505, 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; People v. Torres, 5 A.D.2d 134, 136, 170 N.Y.S.2d 104, 106, affd. 5 N.Y.2d 804, 181 N.Y.S.2d 202, 155 N.E.2d 114, cert. den. 359 U.S. 993, 79 S.Ct. 1126, 3 L.Ed.2d 981; People v. Tucker, 47 A.D.2d 583, 363 N.Y.S.2d 180; People v. Pierce, supra.)

In People v. Kass, 74 Misc.2d 682, 346 N.Y.S.2d 641, where a physician was convicted of 23 out of 29 counts of an indictment charging violations of Article 33 of the Public Health Law, the court said, 'Although a repugnant verdict, as opposed to one which is merely inconsistent, cannot stand, repugnancy is not herein involved since the various counts do not have identical elements. Involved are different drugs, different dates and different individuals to whom the drugs were prescribed. * * * Defendant, therefore, cannot avail himself of the theory of repugnancy to disturb the jury's verdict.'

CONTRADICTORY INSTRUCTIONS

The following constitutes a portion of the court's charge excepted to by the defendant:

'To find that one is an accomplice, you must come to the conclusion that the evidence establishes that he criminally participated with the defendant in the commission of the crime charged. This participation must appear to have been in all the elements of the crime, as I have charged you. It makes no difference...