People v. Orsilini , 415 N.Y.S.2d 32 ( 1979 )

Silverman, J.,

also concurs in a separate memorandum, as follows: I agree with the court’s memorandum. But even if I thought that there was no rational basis for the jury to find the defendant not guilty of the forgery counts but guilty of the possession of a forged instrument, I would still affirm. Once lesser counts are submitted to a jury along with the greater, the jury, as a practical matter, has the prerogative of mercy; it may decide not to convict of the greater crime even though it believes the defendant to be guilty of the greater crime and convict only of the lesser included crime, provided of course the evidence establishes guilt of at least the lesser crime. "The power of a jury in a criminal case to reject, though unreasonably, evidence which is uncontradicted and unimpeached, and to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, cannot be challenged in an appellate court.” (People v Rytel, 284 NY 242, 245.) "As is manifest, merciful or weak jurors may disregard even overwhelming proof of culpability and acquit entirely or convict of a lower crime than the evidence reflects. But that, it has been correctly observed, is 'their responsibility and not the court’s.’ ” (People v Mussenden, 308 NY 558, 563.) "Consistency in the verdict is not necessary.” (Dunn v United States, 284 US 390, 393.) This is different from the case where the elements of the two crimes are identical so that the jury’s verdict amounts to finding the defendant both guilty and not guilty of essentially the same crime (e.g., People v Bullís 30 AD2d 470, 472; People v Rivera, 59 AD2d 675, separate concurrence by Silverman, J.).