PEOPLE v. STOVALL

Judgment unanimously affirmed. Memorandum: Defendant contends that the verdict convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and acquitting him of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) is repugnant. We disagree. A verdict is repugnant "only in those instances where acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" ( People v. Tucker, 55 N.Y.2d 1, 7, rearg denied 55 N.Y.2d 1039). County Court charged the jury that criminal possession of a controlled substance in the third degree requires knowing and unlawful possession with the intent to sell, while criminal sale of a controlled substance in the third degree requires a knowing and unlawful sale. Because possession and intent to sell are not necessary elements of criminal sale of a controlled substance in the third degree, defendant's acquittal on the possession count is not conclusive with respect to a necessary element of the sale count ( see generally, People v. White, 172 A.D.2d 790; People v. Gonzalez, 156 A.D.2d 711).