PEOPLE v. STOVALL (2000)

 Defendant contends that the verdict convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and acquitting him of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) is repugnant.   We disagree.   A verdict is 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. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081).   County Court charged the jury that criminal possession of a controlled substance in the third degree requires knowing and unlawful possession with the intent to sell, while criminal sale of a controlled substance in the third degree requires a knowing and unlawful sale.   Because possession and intent to sell are not necessary elements of criminal sale of a controlled substance in the third degree, defendant's acquittal on the possession count is not conclusive with respect to a necessary element of the sale count (see generally, People v. White, 172 A.D.2d 790, 569 N.Y.S.2d 161;  People v. Gonzalez, 156 A.D.2d 711, 549 N.Y.S.2d 463).

Judgment unanimously affirmed.

MEMORANDUM: