AD4 order dated July 19, 2013, modifying judgment of conviction. Decision below: 108 AD3d 1145, 969 NYS2d 350. Peradotto, J. (AD dissenter), granted leave August 14, 2013. (Taken off SSM.)

ISSUE PRESENTED: Whether the jury verdict, convicting defendant of first-degree manslaughter as a hate crime (P.L. 125.20[1], 485.05[1][a]), but acquitting him of first-degree manslaughter (P.L. 125.20[1]) – both Class B felonies – was inconsistent and “legally impossible

Relevant Facts: A jury delivered a verdict convicting DeLee of first-degree manslaughter as a hate crime and acquitting him of first-degree manslaughter.  Defense counsel argued that the verdict was inconsistent but the judge dismissed the jury.  The court later denied counsel’s 330.30 motion that the verdict was repugnant. The DA had argued that the jury must have concluded that the first-degree manslaughter was akin to a lesser included offense of the hate crime, such that a conviction would have been superfluous.  The Appellate Division reversed the hate crime conviction, dismissed the indictment and otherwise affirmed.  

 

Issue before the Court: Was the verdict repugnant, and, if so, what is the proper remedy? 

 

Held: Yes, the verdict is repugnant under a straightforward application of People v. Muhammed, 17 N.Y.3d 532 (2011) and People v. Tucker, 55 N.Y.2d 1 (1981) which advises courts to look solely to the charge — not to the facts of the case — to determine repugnancy.  Only if it is legally impossible, under all conceivable circumstances, for the jury to have convicted the defendant on one count but not the other, will a verdict be deemed repugnant.  A split verdict will be upheld if there is any theory that could explain it — even if the theory has no evidentiary basis under the facts adduced at trial.  Here, the verdict is repugnant and cannot be explained on any theory, as  all of the elements of first-degree manslaughter are included in the hate crime, so acquittal of first-degree manslaughter means that at least one of the essential elements of the hate crime was not proven beyond a reasonable doubt.  Compare Hill (companion case to Muhammed) (split verdict acquitting the defendant of second-degree weapon possession and convicting of assault upheld even though facts at trial showed that the defendant used the hammer to commit the assault, because the court’s charge theoretically permitted a finding that the assault was committed without physically possessing the weapon).

 

The Court announces a new rule on remedy - dismissal is too great a windfall particularly where the inconsistency already suggests an exercise of the jury’s mercy function.  Instead, there should be retrial on the repugnant charge on which the jury convicted, upon resubmission to a new grand jury.    

 

CAL Observes: True repugnancy is rare as there will almost always be some theoretical way to rationalize a verdict, however crazy under the evidence in the case itself.  One exception is, as here, where the jury acquits of a crime that is, in a sense, a lesser of the convicted-of count.  The Court urges lower courts to nip problems in the bud by refusing to accept an inconsistent verdict and requiring the jury to reconsider its verdict.   

 

Judge Abdus-Salaam, concurring, suggests that in hate and non-hate crime situations, the non-hate crime should be charged as a lesser included offense of its hate-crime variant, preventing deliberation on the non-hate crime unless the jury doesn’t convict of the hate crime.