dissents and votes to modify the judgment appealed from, on the law and on the facts and as a matter of *374discretion in the interest of justice, by reducing the conviction of assault in the first degree to a conviction of assault in the second degree, and vacating the sentence imposed, and to affirm the judgment as so modified, and to remit the matter to the Supreme Court, Queens County, for resentencing, with the following memorandum in which Brown, J., concurs: The defendant was tried, along with two codefendants, for the crimes of assault in the first degree, assault in the second degree, harassment and two counts of criminal possession of a weapon in the fourth degree. The defendant was alleged to have restrained the victim by pulling his left arm across his body while a codefendant stabbed the victim in the abdomen with a knife. The prosecution proceeded on a theory that the defendant had acted in concert with his two codefendants. The jury returned a verdict finding the defendant guilty of assault in the first degree as a result of the stabbing of the victim with a knife while acquitting him of the weapons possession counts. Prior to the discharge of the jury, defense counsel raised an objection to this apparent repugnancy, thus preserving the issue for appellate review (see, People v Harrison, 123 AD2d 786). Although the trial court found that the verdicts were inconsistent, it found that they were not repugnant and accepted the verdicts as rendered. The court reconciled the matter by reasoning that the jury had found, in this case, that all three codefendants had intended to cause serious physical injury while the defendant and codefendant Nikolica did not intend to possess a knife.
The defendant’s contention that his conviction of assault in the first degree is inherently inconsistent with his acquittal on the weapons possession counts insofar as the possession of the knife with intent to use it unlawfully against another was an essential element of the crime of assault in the first degree, as charged, is not without merit.
With respect to a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, it has been held that a verdict as to a particular count will be set aside only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the crime, as charged, for which the guilty verdict was rendered (People v Goodfriend, 64 NY2d 695, 697; People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039). "The determination as to the repugnancy of the verdict is made solely on the basis of the trial court’s charge and not on the correctness of those instructions” (People v Hampton, 61 NY2d 963, 964). Neither the legal accuracy of the charge nor the *375particular facts of the case are controlling with respect to a determination of repugnancy (see, People v Green, 71 NY2d 1006; People v Johnson, 70 NY2d 819).
In the instant case, the charge of assault in the first degree, as presented to the jury, called for a determination of whether the codefendants, acting in concert, intentionally caused serious physical injury to the victim by stabbing him with a knife. The jury was further instructed that in order to return a verdict of guilty with respect to the crime of criminal possession of a weapon in the fourth degree, they must find that the People had proven that the codefendants, acting in concert, knowingly possessed a knife with the intention of using it unlawfully against another. The trial court then rendered the following instructions with respect to acting in concert:
"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 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. * * *
"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 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”.
*376An examination of the record in the instant case indicates that the verdict rendered was inherently self-contradictory in light of the elements of the crimes charged (People v Hampton, supra, at 964; People v Cooper, 118 AD2d 721, lv denied 67 NY2d 1051). Having found the defendant guilty of assault in the first degree as charged, the jury could not properly have acquitted him of the weapons possession counts, particularly in light of the acting in concert charge. Under the circumstances of this case, possession of the knife with the intent to use it constituted an essential element of the assault charge and the jury’s verdict of not guilty on the weapons possession counts was a specific finding that an essential element of the assault charge had not been established. Stated succinctly, the jury’s acquittal on the weapons possession counts as charged was conclusive as to a necessary element of the assault count for which the guilty verdict was rendered. The jury as instructed thus reached an inherently self-contradictory verdict which cannot be upheld in its present form.
Accordingly, the conviction of assault in the first degree should be reduced to assault in the second degree (see generally, CPL 470.15 [2]; People v Nunez, 127 AD2d 801) and the matter should be remitted to the Supreme Court, Queens County, for resentencing. A person is guilty of assault in the second degree when, with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person (Penal Law § 120.05 [1]). A conviction of assault in the second degree is not in any way inconsistent with an acquittal on the weapons possession counts. As so modified, the verdict would be immune from any allegations of repugnancy.
I have considered the defendant’s remaining contentions and find them to be without merit.