People v. Curinaj , 1979 N.Y. App. Div. LEXIS 10560 ( 1979 )

— Motion for reargument granted and upon reargument the order of this court entered on November 14, 1978 [65 AD2d 705] is recalled, vacated and resettled to reflect that the reversal of the judgment appealed from was solely on the law, and the memorandum decision filed therewith is recalled, vacated and resettled as follows: Judgment, Supreme Court, New York County, rendered on May 4, 1977, convicting defendant, after jury trial, of criminal possession of a weapon in the second degree, reversed, on the law, and a new trial directed. Under the circumstances the court should have charged the jury, as requested, that temporary possession of a weapon, properly explained, does not constitute a crime. (People v Messado, 49 AD2d 560.) Acquittal on the attempted murder and assault counts and conviction on the weapon possession count did not, however, constitute a repugnant verdict, and thus a new trial is directed. (See People v Cwikla, 60 AD2d 40, 45.) Concur — Lupiano, Lane and Sullivan, JJ.