People v. Schettino

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pi-taro, J.), rendered July 8, 1985, convicting him of conspiracy in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment affirmed, and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).

The defendant claims that the jury’s verdict is repugnant because it acquitted him of criminal solicitation in the fourth degree. However, the record refutes the defendant’s contention that this claim was raised prior to the discharge of the jury. Therefore, the defendant’s claim of a repugnant verdict has not been preserved for our review as a matter of law (see, People v Satloff, 56 NY2d 745, 746; People v Ochoa, 119 AD2d 703). In any event, after viewing the court’s instructions to the jury as to both conspiracy in the fourth degree and criminal solicitation in the fourth degree, we find that the verdict is not inherently contradictory (see, People v Goodfriend, 64 NY2d 695, 697; People v Tucker, 55 NY2d 1, 4). We also find no reason to substitute our discretion for that exercised by the sentencing court (see, People v Suitte, 90 AD2d 80, 86-87). Thompson, J. P., Niehoff, Eiber and Spatt, JJ., concur.