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

The PEOPLE of the State of New York, Respondent, v. Arthur SACKES, Defendant-Appellant.

Decided: October 21, 2004

TOM, J.P., SULLIVAN, WILLIAMS, LERNER, SWEENY, JJ. Laura R. Johnson, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Harold B. Beeler, J.), rendered July 2, 2002, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 9 years, unanimously affirmed.

 Since the verdict convicting defendant of assault in the first degree and acquitting him of criminal possession of a weapon in the third degree was not repugnant, the court properly denied defendant's request to resubmit the case to the jury and accepted the verdict.   A verdict is repugnant “only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” (People v. Tucker, 55 N.Y.2d 1, 4, 447 N.Y.S.2d 132, 431 N.E.2d 617 [1981] ).  “A determination of whether a verdict is repugnant is based solely on a review of the trial court's charge regardless of its accuracy” (People v. Green, 71 N.Y.2d 1006, 1008, 530 N.Y.S.2d 97, 525 N.E.2d 742 [1988] ).   There was nothing in the court's charge, including its discussion of the defense of justification and its effect on the crimes charged, that precluded the jury from concluding that defendant initially possessed the machete without intending to use it unlawfully against another, but subsequently decided to strike the victim with it as events unfolded (see People v. Haymes, 34 N.Y.2d 639, 355 N.Y.S.2d 376, 311 N.E.2d 509 [1974], cert. denied 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 [1974] ).

We perceive no basis for reducing the sentence.