People v. Olcan

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered January 5, 1987, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The charges against the appellant arose from an incident [370] during which he and a codefendant restrained the complainant, while another codefendant, armed with a knife, purportedly stabbed the complainant. After a joint trial, the appellant was convicted of assault in the first degree but he was acquitted of criminal possession of a weapon (the knife) in the fourth degree. On appeal, the appellant contends that his timely application to set aside the verdict as repugnant should have been granted. We disagree. It is well settled that in determining a repugnancy issue, the court is required to review only the particular charge given to the jury, without regard to its accuracy or the particular facts of the case (see, People v Green, 71 NY2d 1006; People v Johnson, 70 NY2d 819; People v Tucker, 55 NY2d 1, 4, rearg denied 55 NY2d 1039). In this case, the trial court instructed the jury with respect to the essential elements of the crime of assault in the first degree as follows: "Assault in the first degree, the first count of the indictment reads as follows: "The Grand Jury of the County of Queens, by this indictment, accuses the defendants of the crime of assault in the first degree committed as follows: "The defendants, each aiding the others, on or about May 4, 1985, in the County of Queens, with intent to cause serious physical injury to Vasilije Zavisin, caused such injury to Vasilije Zavisin by means of a dangerous instrument, to wit a knife. * * * "In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case beyond a reasonable doubt, each of the following five elements: "1. That on or about May 4, 1985, in the County of Queens, the defendants acting in concert, stabbed Vasilije Zavisin. "2. That the defendants acting in concert, stabbed Vasilije Zavisin with the intent to cause serious physical injury to Vasilije Zavisin. "According to the law, a person acts with intent to cause serious physical injury when his conscious aim or objective is to cause serious physical injury. "3. That the defendants’ act, acting in concert, caused serious physical injury to Vasilije Zavisin. "According to the law, physical injury means impairment of [371] physical condition or substantial pain; and serious physical injury means a physical injury which creates a substantial risk of death or which causes death or serious and protracted disfigurement or protracted impairment of health, or protracted loss or impairment of the function of any bodily organ. "4. That the defendants acting in concert, caused the serious physical injury by means of a knife. "5. That the knife was a dangerous instrument. "According to the law, a dangerous instrument is any instrument, article or substance which under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” The court further instructed the jury concerning the essential elements of the crime of criminal possession of a weapon in the fourth degree, in pertinent part, as follows: "The fourth count of the indictment reads as follows: "The Grand Jury of the County of Queens'by this indictment, accuse the defendants of the crime of criminal possession of a weapon in the fourth degree, committed as follows: "The defendants each aiding the others, on or about May 4, 1985, in the County of Queens, knowingly and unlawfully possessed a dangerous instrument, to wit: a knife, with the intent to use unlawfully against another. * * * "In order for you to find the defendants guilty of this crime, the People are required to prove, from all of the evidence in the case beyond a reasonable doubt, each of the following four elements: "1. That on or about May 4, 1984, in the County of Queens, the defendants, acting in concert, possessed a certain object as testified to by the People’s witnesses. "According to the law, to possess means to have physical possession or otherwise to exercise dominion or control over tangible property. "Possession of property must be knowing possession; that is, the alleged possessor must be aware of his possession of the property. "2. That what the defendants, acting in concert possessed was, in fact, a knife. "3. That the defendants, acting in concert, knowingly possessed such knife. "According to the law, a person knowingly possesses a knife when he is aware that he possesses such knife. [372] "4. That the defendants, acting in concert possessed such knife with intent to use it unlawfully against another. "According to the law, a person intends to use a weapon or instrument unlawfully against another when his conscious aim or objective is to use it unlawfully against another”. In addition, the trial court instructed the jury on the concept of acting in concert, in pertinent part, as follows: "Section 20 of the Penal Law, as applicable to this case, reads as follows: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct. "This simply means that if you should find the defendants aided or abetted each other in the commission of a crime, each having the intent that the criminal purpose be effected, this section makes all parties principals to the crime. "Under the circumstances of this indictment, a person acts with mental culpability or with a culpable mental state when he acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct, or to put it more simply, when he acts with intent to cause the result or conduct involved. "Under this general provision of the law, the guilt of a defendant may be established without proof that the defendant did each and every act constituting the crime charged. "Every person who intentionally participates in the commission of a crime may be found guilty of that very crime. However, mere presence at the scene of the crime is not sufficient. "Participation is intentional if done voluntarily and purposefully, and with a specific intent to do some act that the law forbids. "Soliciting or requesting another person to commit a crime or intentionally aiding another person to commit a crime constitutes participation. "The degree or the extent to which a defendant intentionally participates in the commission of a crime is immaterial in fixing his or her responsibility, for when two or more persons act together in the commission of a crime, the law does not [373] stop to apportion the percentage of guilt that may attach to each of them. "The rule is that a person who intentionally aids in the commission of a crime is himself guilty of that very crime”. Contrary to the appellant’s contention, the trial court did not indicate that in order to convict him of assault, the jury had to find that he had knowingly possessed the knife with the intent to use it unlawfully against another. Further, even if the assault count required such an implicit finding, the trial court’s acting in concert charge instructed the jury that as to each count "the guilt of a defendant may be established without proof that the defendant did each and every act constituting the crime charged”. Therefore, under the instructions as given, the jury could have found that the appellant had participated in the assault upon the complainant, but that the appellant himself did not possess the knife (see, People v Johnson, supra; People v Ellis, 120 AD2d 743, Iv denied 68 NY2d 811, lv denied sub nom. People v Williams, 68 NY2d 818; People v Rodriquez, 81 AD2d 513; People v Williams, 47 AD2d 262, 263; People v Sullo, 91 Misc 2d 475; cf., People v Johnson, 133 AD2d 175, affd 70 NY2d 964; People v Jamerson, 99 AD2d 816). While it appears, as noted by the trial court, that the verdict was inconsistent because the jury apparently misunderstood the instructions as to acting in concert with respect to the possession of a weapon count, that factor is not a sufficient basis for setting aside the verdict as repugnant (see, People v Sullo, supra). "Finally, it should be observed, that although [the] defendant moved promptly to set aside the verdict returned by this jury, no objection or exception was taken to the court’s charge. That charge clearly permitted the jury to return the verdict it did. [The] [defendant thus may very well be 'in no position to urge that the verdict was inconsistent, not having excepted to the court’s charge that [the] defendant could be found guilty or not guilty on any one or more of the * * * counts of the indictment.’ (People v Steffens, 12 AD2d 962, 963; see, also, People v Sciascia, 268 App Div 14, affd 294 NY 927.)” (People v Stapleton, 94 Misc 2d 850, 855, affd 70 AD2d 1063.) Since the other contentions raised by the appellant do not warrant reversal, there should be an affirmance of the conviction. Thompson, J. P., Lawrence and Rubin, JJ., concur.