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THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR> v. <BR>DAVON P. GLADNEY, Defendant.

465 [2d Dept 1992]; People v Olcan, supra). I conclude that they are not. As noted above, I instructed the jury that, in order to find the defendant guilty of criminal possession of a weapon in the fourth degree, it must be satisfied beyond a reasonable doubt that defendant, among other things, knew that the pickaxe was or could be dangerous. Although unlikely, it is nonetheless possible that defendant could display and possess a dangerous instrument with the intent to cause a particular result (see Penal Law § 15.05 [1])—here with intent to instill fear— without acting knowingly with respect to a particular circumstance (see Penal Law § 15.05 [2])—here without knowing that the instrument displayed and possessed actually was or actually could be dangerous (cf. People v Taft, 246 AD2d 846 [3d Dept 1998]; People v Mason, 227 AD2d 289 [1st Dept 1996], affd 89 NY2d 878 [1996]; People v Olcan, supra). Because the possession count as I charged it thus has a discrete element, a verdict of not guilty on it is inconclusive as to, and does not necessarily negate, a material element of the crime of menacing in the second degree on which the jury returned a verdict of guilty (People v Goodfriend, supra ; People v Tucker, supra ; see also People v Durand, supra ; People v Alfaro, supra). I am aware that there are circumstances where a verdict of guilty of menacing in the second degree is, because of the instruction given to the jury, inconsistent with a verdict of not guilty of criminal possession of a weapon in the fourth degree (see People v Powell, 171 AD2d 1026 [4th Dept 1991]; People v Torres, 189 Misc 2d 776 [App Term, 2d Dept 2001]). In light of the instructions given here, however, there is no repugnancy.

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People v. Gladney
(Apr 10, 2003)