People v. Moloi

• Decision Date: 07 December 1987
• Citation: 521 N.Y.S.2d 794,135 A.D.2d 576
• Parties: The PEOPLE, etc., Respondent, v. Ernest MOLOI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 794

521 N.Y.S.2d 794

135 A.D.2d 576

The PEOPLE, etc., Respondent, v. Ernest MOLOI, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1987.

Philip L. Weinstein, New York City (Cecilia Loving-Sloane of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Anthea H. Bruffee and Heather D.. Diddel, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered November 25, 1985, convicting him of assault in the first degree (two counts), reckless endangerment in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction for reckless endangerment in the first degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The evidence indicates that in the early morning of June 9, 1984, the defendant, after having severely beaten the complaining witness at the apartment which they shared, threw a pot of boiling oil at her, causing her to suffer permanent scarring. This evidence was legally sufficient to establish that the defendant's actions were committed both with an intent to cause serious physical injury to the victim (see, Penal Law § 120.10[1]; § 10.00[10] ) and with a conscious disregard for the risk of death which such conduct created (see Penal Law § 120.10[3]; § 15.05[3] ). The defendant does not argue, in any event, that the evidence at trial was legally insufficient to support the jury's verdict. Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15[5] ).

On appeal, the defendant does argue that the conviction of assault in the first degree based upon the reckless creation of a risk of death (Penal Law § 120.10[3] ) should not be permitted to stand together with the conviction for assault in the first degree based upon the intentional infliction of serious physical injury (Penal Law § 120.10[1] ). We see no merit to this argument.

It must first be noted that, after the trial court announced its intention to submit all of the counts contained in the indictment to the jury, defense counsel raised no objection based upon any supposed inconsistency between the various counts (see, CPL 300.30[5] ) and did not request an instruction directing the jury to find the defendant not guilty of any particular count upon a finding of guilty on any other count (see, CPL 300.40[5] ). Further, counsel did not raise any issue of repugnancy in the verdict, either before or after the jury had been discharged. We therefore do not consider this issue properly preserved for appellate review (see generally, People v. Ford, 62 N.Y.2d 275, 282-283, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Weissinger, 104 A.D.2d 917, 918, 480 N.Y.S.2d 526 [error in submission of lesser included offense not jurisdictional]; see also, People v. Satloff, 56 N.Y.2d 745, 746, 452 N.Y.S.2d 12, 437 N.E.2d 271, rearg. denied 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247 [claim of repugnancy waived where no objection is raised prior to the discharge of the jury] ).

In any event, with respect to the merits of this argument, it is clear that since the definition of intentional assault in the first degree includes certain elements which are not contained in the crime of reckless assault in the first degree (e.g., the intent to seriously injure, the use of a dangerous instrument), and that the crime of reckless assault in the first degree likewise includes elements not included in the definition of intentional assault in the first degree (e.g., the reckless creation of a risk of death, circumstances evincing a depraved indifference to human life) (cf., Penal Law § 120.10[1]; § 120.10[3] ), the counts of the indictment charging the defendant with these two crimes, based on the same act, cannot be considered "inclusory concurrent counts" (see, CPL 300.30[4]; 1.20[37] ). Therefore, the defendant's conviction on one count did not operate to require a dismissal of the other (see, CPL 300.40[3][b]; People v. Lee, 39 N.Y.2d 388, 384 N.Y.S.2d 123, 348 N.E.2d 579, mot. denied 39 N.Y.2d 808, 385 N.Y.S.2d 761, 351 N.E.2d 428; cf., People v. Perez, 45 N.Y.2d 204, 408 N.Y.S.2d 343, 380 N.E.2d 174).

Furthermore, the two counts of assault in the first degree are not "inconsistent counts", since a conviction of one would not necessarily negate the defendant's guilt of the other (see, CPL 300.30[5]; People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508...