People v. Tucker

In People v. Tucker, 55 N.Y.2d 1 (1981) the defendant was convicted of first-degree robbery under subdivision four, but was acquitted of first-degree robbery under subdivision three. The Court of Appeals held that the verdict was not repugnant because since the jury could find that the gun's capability to fire was not proven, subdivision four would still be satisfied as the affirmative defense of non-operability was never proffered, but such non-operability would lead to an acquittal under subdivision three, which requires the firearm to be operable for it to be a dangerous instrument. In People v. Tucker, the Court of Appeals held that: When there is a claim that repugnant . . . verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged . . . . A conviction will be reversed only in those instances where acquittal on one crime as charged . . . is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered.