PEOPLE v. WALLACE

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

The PEOPLE, etc., respondent, v. Terrence WALLACE, appellant.

Decided: July 19, 2004

FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, and REINALDO E. RIVERA, JJ. Lynn W.L. Fahey, New York, N.Y. (Jonathan Garvin of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, James A. Dolan, and Joseph G. D'Arrigo of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered August 8, 2001, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The jury verdict finding the defendant guilty of assault in the first degree and acquitting him of criminal possession of a weapon in the fourth degree is not repugnant.   Viewing the verdict in light of the elements of the crimes as charged to the jury (see People v. Green, 71 N.Y.2d 1006, 1008, 530 N.Y.S.2d 97, 525 N.E.2d 742;  People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617), the jury could have convicted the defendant of assault based upon his participation in the attack on the complainant under an acting-in-concert theory, yet acquitted him of criminal possession of a weapon because he did not physically possess or exercise dominion or control over the knife (see People v. Olcan, 143 A.D.2d 369, 532 N.Y.S.2d 534).

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