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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Sharone TORRES, Appellant.

Decided: October 25, 2001

Present:  ARONIN, J.P., PATTERSON and GOLIA, JJ. Legal Aid Society, New York City (Daniel L. Greenberg and Carol Santangelo of counsel), for appellant. Charles J. Hynes, District Attorney of Kings County, Brooklyn (Leonard Joblove and Amy Appelbaum of counsel), for respondent.

Judgment of conviction unanimously reversed on the law and accusatory instrument dismissed.

In the case at bar, given the jury instruction, defendant's conviction of menacing in the second degree was inconsistent with his acquittal of criminal possession of a dangerous weapon in the fourth degree (see, People v. Tucker, 55 N.Y.2d 1, 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).   In reaching this result, we are of the opinion that the fact that the court in its charge to the jury specifically referred to a knife in the criminal possession count while simply referring to a “dangerous instrument” in the menacing count, does not warrant a different result (cf., People v. Powell, 171 A.D.2d 1026, 569 N.Y.S.2d 232;  People v. Jamerson, 99 A.D.2d 816, 472 N.Y.S.2d 148).   The factual part of the accusatory instrument referred only to a knife and the court in its charge made no mention of any other weapon.


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