People v. Wilson

• Decision Date: 28 June 2019
• Docket Number: 743,KA 17–00419
• Citation: 173 A.D.3d 1853,104 N.Y.S.3d 475
• Parties: The PEOPLE of the State of New York, Respondent, v. Taurean L. WILSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1853
104 N.Y.S.3d 475

The PEOPLE of the State of New York, Respondent,
v.
Taurean L. WILSON, Defendant–Appellant.

743
KA 17–00419

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

Entered: June 28, 2019

THOMAS L. PELYCH, HORNELL, FOR DEFENDANT–APPELLANT.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

173 A.D.3d 1853

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of conspiracy in the fourth degree ( Penal Law § 105.10 [1 ] ). Defendant's conviction stems from an incident in which he and three codefendants drove from New Jersey and parked their vehicle near a mobile home in Bath at approximately 4:30 a.m. The resident of the mobile home, hearing the unusual sound of car doors closing outside her residence, called the police. When the police arrived less than two minutes later, defendant and codefendants fled and were apprehended shortly thereafter. The police later found, inter

104 N.Y.S.3d 477

alia, an airsoft pellet gun, head coverings, gloves, and garbage bags in the area near where defendant was apprehended.

Defendant contends that the verdict is repugnant because the jury acquitted him of attempted burglary in the second degree. We reject that contention. " ‘[A] conviction will be reversed [as repugnant] only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered’ " ( People v. Madore , 145 A.D.3d 1440, 1441, 46 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 1034, 62 N.Y.S.3d 303, 84 N.E.3d 975 [2017], quoting People v. Tucker , 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981], rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 [1982] ; see generally People v. Muhammad , 17 N.Y.3d 532, 538–541, 935 N.Y.S.2d 526, 959 N.E.2d 463 [2011] ). If "there is a possible theory under which a

173 A.D.3d 1854

split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" ( People v. DeLee , 24 N.Y.3d 603, 608, 2 N.Y.S.3d 382, 26 N.E.3d 210 [2014] [internal quotation marks omitted] ). Upon reviewing the elements of the two crimes as charged to the jury (see id. ), we conclude that the verdict of guilty of conspiracy in the fourth degree is not repugnant to the acquittal of attempted burglary in the second degree (see People v. Gary , 115 A.D.3d 760, 761, 981 N.Y.S.2d 602 [2d Dept. 2014], affd 26 N.Y.3d 1017, 20 N.Y.S.3d 327, 41 N.E.3d 1142 [2015] ; People v. Williams , 146 A.D.3d 821, 822, 45 N.Y.S.3d 503 [2d Dept. 2017], lv denied 29 N.Y.3d 1088, 64 N.Y.S.3d 178, 86 N.E.3d 265 [2017] ). Conspiracy in the fourth degree "is an offense separate and distinct from the crime" of attempted burglary in the second degree ( People v. Bavisotto , 120 A.D.2d 985, 986, 502 N.Y.S.2d 867 [4th Dept. 1986], lv denied 68 N.Y.2d 912, 508 N.Y.S.2d 1033, 501 N.E.2d 606 [1986], cert denied 480 U.S. 933, 107 S.Ct. 1572, 94 L.Ed.2d 763 [1987] ), and the two crimes have "different basic elements" ( People v. Smith , 61 A.D.2d 91, 98, 401...