People v. Sanchez

• Citation: 512 N.Y.S.2d 389,128 A.D.2d 377
• Parties: The PEOPLE of the State of New York, Respondent, v. Noro SANCHEZ, Defendant-Appellant.
• Decision Date: 03 March 1987
• Court: New York Supreme Court — Appellate Division

Page 389

512 N.Y.S.2d 389

128 A.D.2d 377

The PEOPLE of the State of New York, Respondent, v. Noro SANCHEZ, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 3, 1987.

D.K. Bertan, Glen Head, M.J. Eng, New York City, for respondent.

R.S. Sharfman, New York City, for defendant-appellant.

Before MURPHY, P.J., and KUPFERMAN, MILONAS, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment Supreme Court, Bronx County (Richard L. Price, J.), rendered December 4, 1985, convicting defendant, upon a jury verdict, of assault in the second degree (felony assault), and sentencing him to a term of imprisonment of 2 to 6 years, is reversed, on the law and as a matter of discretion in the interest of justice, and the indictment dismissed.

Defendant stood trial upon a five count indictment for the crimes of robbery in the first degree, two counts of burglary in the first degree (one for causing physical injury and the other for using a dangerous instrument--an ash tray), attempted rape, and felony assault in the second degree. The jury acquitted defendant of robbery, both counts of burglary, and the attempted rape charge, but convicted him of felony assault.

The trial court submitted all five counts of the indictment in the alternative without charging any lesser included offense to the first four counts. With respect to the felony assault count, the court charged:

In order for you to find the defendant guilty of this crime, the People are required to prove ... beyond a reasonable doubt each of the following elements: that on or about October 24, 1984, in the County of the Bronx the defendant committed or attempted to commit any of the crimes alleged herein; that the defendant caused physical injury to that the defendant caused physical injury to while in the course of or in furtherance of the commission or attempted commission of the crimes alleged herein or in immediate flight therefrom; ... (T.648-49). (Emphasis added)

This language of the charge, to which no objection was lodged by the People, became the law of the case (People v. Malagon, 50 N.Y.2d 954, 957, 431 N.Y.S.2d 460, 409 N.E.2d 934; People v. Bell, 48 N.Y.2d 913, 425 N.Y.S.2d 52, 401 N.E.2d 175). Thus in order to convict defendant of the crime of felony assault, the jury was required to find beyond a reasonable doubt that the assault occurred "in the course of ... the commission or attempted commission of a felony ...", an essential element of this offense under Penal Law § 120.05(6) which provides that in order to sustain a conviction of felony assault, the People must prove that defendant:

In the course of and in furtherance of the commission or attempted commission of a felony.... or of immediate flight therefrom.... causes physical injury to a person other than one of the participants....

In People v. DeJesus, 123 A.D.2d 563, 507 N.Y.S.2d 144, we held that where defendant's conviction of robbery was required to be reversed because of insufficient proof of accomplice liability, his felony assault conviction could not independently survive because "as no felony or attempted felony contained in the indictment against appellant has been proven, appellant's conviction of second degree assault is not sustainable." In essence we concluded that conviction for either an underlying felony or its attempted commission is an essential element of the crime of felony assault. ^* Here defendant's acquittal of all the underlying crimes requires vacatur of the verdict convicting him of felony assault, because the jury's determination on that last count is inconsistent with and repugnant to their finding of defendant's non-guilt on the first four counts (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617).

The People argue that defendant waived his objection to the repugnancy of this verdict by failing to register any objection prior to the discharge of the jury. Only after the jury was disbanded did defense counsel move to set aside the verdict in general terms "as contrary to the law, contrary to the weight of the evidence, and all other grounds provided by the CPL." As noted in the dissent, under ordinary circumstances an alleged inconsistency in a verdict must be asserted prior to the jury's discharge so that it may reconsider its verdict in order to preserve the issue for appellate review (People v. Stahl, 53 N.Y.2d 1048, 442 N.Y.S.2d 488, 425 N.E.2d 876; People v. Bruckman, 46 N.Y.2d 1020, 416 N.Y.S.2d 585, 389 N.E.2d 1105). Certainly a failure to make such timely objection would foreclose review in the Court of Appeals (People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271). However, we are free to consider the question in the interest of justice even absent a timely assertion of the error ...