| People v Bharath |
| 2015 NY Slip Op 09168 |
| Decided on December 10, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 10, 2015
Mazzarelli, J.P., Richter, Manzanet-Daniels, Kapnick, JJ.
16361 549/11
v
Michael Bharath, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Adrienne M. Gantt of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Robert Sackett, J.), rendered March 21, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term of 2 ½ to 5 years, unanimously affirmed.
Defendant's argument that the verdicts acquitting him of assault and attempted assault but convicting him of third-degree weapon possession were repugnant is unpreserved (see People v Alfaro, 66 NY2d 985 [1985], and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Where, as here, "there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" (People v Muhammad, 17 NY3d 532, 540 [2011]). Even if the split verdict lacks an evidentiary basis, "factual repugnancy—which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict" (id. at 545). There is no merit to defendant's suggestion that we disregard Court of Appeals precedent and apply the evidentiary test advocated by the dissenters in Muhammad.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 10, 2015
CLERK