People v. Howard , 484 N.Y.S.2d 67 ( 1985 )

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Hyman, J.), rendered September 13,1982, convicting him of criminal possession of stolen property in the first degree and unauthorized use of a vehicle, upon a jury verdict, and imposing sentence.

Judgment modified, as a matter of discretion in the interest of justice, by reversing the conviction of unauthorized use of a vehicle, vacating the sentence imposed thereon, and dismissing that count. As so modified, judgment affirmed.

The People established the defendant’s guilt of criminal possession of stolen property in the first degree beyond a reasonable doubt. Defendant’s claim that the jury rendered a repugnant verdict, in addition to lacking substance, was not preserved for review since defendant failed to raise the issue prior to the discharge of the jury (see People v Satloff, 56 NY2d 745, 746; People v Stahl, 53 NY2d 1048, 1050; People v Holmes, 104 AD2d 1049; People v Figueroa, 96 AD2d 515). His claim that the court erroneously accepted a defective verdict was similarly unpreserved for review, as a matter of law, due to his failure to except to the verdict until after the jury was discharged. However, in the interest of justice we dismiss the unauthorized use conviction since the trial court specifically charged the jury that it was not to consider unauthorized use if it found defendant guilty of the criminal possession count, of which he was convicted. Mollen, P. J., Bracken, Niehoff and Lawrence, JJ., concur.