PEOPLE v. McLAURIN (2008)

Defendant appeals from a judgment convicting him, following a joint trial with two codefendants, one of whom was his son, of obstructing governmental administration in the second degree (Penal Law § 195.05) and resisting arrest (§ 205.30).   Both defendant and his son were charged with resisting the son's arrest, and defendant was also charged with, inter alia, obstructing governmental administration by acting to prevent the arrest of his son.   Defendant's son was acquitted.

 Defendant failed to preserve for our review his contention that the verdicts are repugnant based on the fact that his son was acquitted (see generally People v. Maldonado, 11 A.D.3d 114, 781 N.Y.S.2d 636, lv. denied 3 N.Y.3d 758, 788 N.Y.S.2d 675, 821 N.E.2d 980) and, in any event, 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. 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).   That rule also applies when one codefendant is convicted of a crime while another is acquitted of the same crime (see generally People v. Green, 71 N.Y.2d 1006, 1008, 530 N.Y.S.2d 97, 525 N.E.2d 742;  People v. Hampton, 61 N.Y.2d 963, 964, 475 N.Y.S.2d 273, 463 N.E.2d 614).   With respect to the charge of resisting arrest against defendant's son, the jury's finding that the People failed to prove beyond a reasonable doubt that defendant's son “prevented or attempted to prevent a police officer from performing an authorized arrest of himself” did not negate any element of either the resisting arrest charge or obstructing governmental administration charge against defendant.   Defendant further contends that the verdicts are repugnant because both he and his son relied upon the same defense at trial, i.e., that the son was never present, and the jury must have found that the son was not present in order to acquit him.   We reject that contention inasmuch as it involves “an attempt to divine the jury's collective mental process of weighing the evidence,” which is prohibited (Tucker, 55 N.Y.2d at 4, 447 N.Y.S.2d 132, 431 N.E.2d 617).

Contrary to defendant's further contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: