PEOPLE v. AFRIKA (2002)

On appeal from a judgment convicting him of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the third degree (Penal Law § 265.02[4] ), defendant contends that his conviction of intentional assault is repugnant to his acquittal of criminal possession of a weapon in the second degree (Penal Law § 265.03[2] ).   That contention is not preserved for our review (see, People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  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) and in any event lacks merit.   As long as the “court's charge did not preclude the jury from concluding that defendant initially possessed the loaded pistol without intending to use it unlawfully against another, but decided to fire the gun at complainant as events unfolded”, a verdict finding defendant guilty of intentional assault but not guilty of possession with unlawful intent is not repugnant (People v. Brewer, 186 A.D.2d 88, 588 N.Y.S.2d 766, lv. denied 81 N.Y.2d 785, 594 N.Y.S.2d 732, 610 N.E.2d 405;  see, People v. Fuller, 200 A.D.2d 498, 606 N.Y.S.2d 640, lv. denied 83 N.Y.2d 871, 613 N.Y.S.2d 132, 635 N.E.2d 301;  see also, People v. Anthony, 273 A.D.2d 246, 709 N.Y.S.2d 836;  People v. Holloway, 253 A.D.2d 767, 768, 677 N.Y.S.2d 489, lv. denied 92 N.Y.2d 1033, 684 N.Y.S.2d 498, 707 N.E.2d 453;  People v. Smith, 235 A.D.2d 558, 559, 653 N.Y.S.2d 931, lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 872, 681 N.E.2d 1319).   Here, “[t]he court's charge, to which defendant had no objection, defined each charge separately and required that the jury consider them separately” (People v. Jordan, 175 A.D.2d 649, 650, 572 N.Y.S.2d 580, lv. denied 78 N.Y.2d 1128, 578 N.Y.S.2d 885, 586 N.E.2d 68).

We have considered the claims of ineffective assistance of counsel raised in the pro se supplemental brief and conclude that they are without merit.

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

MEMORANDUM: