People v. Powell

Judgment unanimously reversed on the law and indictment dismissed. Memorandum: The trial court instructed the jury that they were required to find, as an essential element of criminal possession of a weapon in the fourth degree, that defendant possessed a dangerous instrument, a knife, and with respect to charges of unlawful imprisonment and menacing, that defendant used the knife in threatening or exposing the victim to serious physical injury. Given this jury instruction, defendant’s convictions for unlawful imprisonment in the first degree and menacing were inconsistent with the acquittal of that count of the indictment charging defendant with criminal possession of the knife (cf., People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039). Ordinarily, an objection that verdicts are repugnant, to be preserved for appellate review, must be raised before discharge of the jury so the infirmity can be corrected by resubmission of the matter to the jury (see, People v Satloff, 56 NY2d 745, rearg denied 57 NY2d 674; People v Stahl, 53 NY2d 1048). Immediately after polling the jury, the trial court made highly prejudicial comments regarding defendant’s criminal history, thereby precluding resubmission of the case to the jury and negating the need for an objection. (Appeal from Judgment of Onondaga County Court, Cunningham, J. — Unlawful Imprisonment, 1st Degree.) Present — Doerr, J. P., Boomer, Green, Balio and Davis, JJ.