The defendant, Michael Saccente, was convicted after a jury trial of Assault in the Third Degree (Penal Law § 120.00[2]). He moves, pursuant to Criminal Procedure Law (CPL) § 330.30 et. seq., to set aside the verdict on the grounds that: (1) the conviction of reckless assault is improper in light of his acquittal on the charge of intentional assault, based upon the defendant's reading of People v. Payne, 3 NY3d 266 (2004); (2) the conviction is inconsistent and repugnant given defendant's acquittal on the charge of intentional assault and criminal possession of a weapon; and (3) the People failed to present legally sufficient evidence of reckless assault.^[FN1]

Defendant argues that the core element of recklessness required for a conviction of reckless assault cannot be shown in a case of one on one assault involving a weapon. Under those circumstances, defendant contends, if defendant is acquitted of intentional assault, he may not be found guilty of reckless assault. Defendant's reliance upon People v. Payne, 3 NY2d 266 (2004), to support that proposition, is misplaced.

Payne stands for the proposition that, under circumstances which compel the conclusion that the defendant intended to kill the victim, he may not be convicted of depraved indifference murder.^[FN2] The underlying principle of Payne and similar cases is that when the evidence establishes beyond cavil the commission of an intentional act, a jury may not properly acquit on a charge which requires intent and convict upon a charge involving reckless culpability based upon the same underlying facts. That principle is hardly novel. It has long been established that when [*2]the facts clearly demonstrate that a defendant's actions were intentional and cannot be viewed otherwise by a rational fact finder, then a verdict based upon reckless behavior cannot stand. That principle has been applied regularly in cases charging assault. see: People v. Sudan, 298 AD2d 520 (3rd Dept. 2002), leave denied, 99 NY2d 620; People v. Long, 259 AD2d 634 (2nd Dept. 1999), leave denied, 93 NY2d 926; People v. Hill, 255 AD2d 969 (4th Dept. 1998); People v. Williams, 252 AD2d 823 (1998); People v. Ramos, 242 AD2d 510 (1st Dept. 1997), leave denied, 91 NY2d 896.

In the instant case, the evidence demonstrated that, in the course of a confrontation with the complainant, defendant swung a beer bottle at the complainant causing injury to his face. The jury found the defendant not guilty of intentional assault and not guilty of criminal possession of a weapon. Those two findings are not inconsistent with the jury's verdict convicting the defendant of reckless assault.

The weapon possession count contained an element of intent to use unlawfully, which was not an element of reckless assault. See, People v. Williams, 255 AD2d 408 (2nd Dept. 1998). It does not follow, as defendant argues, that because of the acquittal on the weapons charge the jury must have found that he did not have the bottle at all. The jury may well have determined that the defendant did not intend to cause physical injury to the complainant, and therefore his possession of a bottle did not constitute possession of a dangerous instrument within the meaning of PL 265.01(2), and yet, found that his conduct created a substantial and unjustifiable risk of physical injury which he consciously disregarded. (See, People v. Asaro, 182 AD2d 823 (2nd Dept. 1992) - single blow with a bat during a barroom brawl held to be a reckless act; People v. Cameron, 123 AD2d 325 (2nd Dept. 1986) - injury caused by blow to face with a glass beer pitcher may be basis for conviction of reckless assault notwithstanding acquittal on intentional assault).

Unlike the facts in People v. Payne, supra, and People v. Gonzalez, supra, the evidence in this case does not compel the conclusion that the defendant committed an intentional assault or no assault at all. Since intentional and reckless assault require conflicting mens rea and there was but a single outcome, the court, consistent with the direction of People v. Gallagher, 69 NY2d 525 (1987), properly charged the jury that it must consider those counts in the alternative and may not find the defendant guilty of both.^[FN3] The jury followed the instruction and their verdict, convicting the defendant of reckless assault, does not run afoul of the holding in People v. Payne, supra.

Defendant contends that it is illogical and inconsistent for the jury to have acquitted him of criminal possession of a weapon while convicting him of reckless assault, since the evidence demonstrated that defendant struck the complainant with a bottle. Defendant argues that a conviction on the charge of possession of a weapon was essential to the jury verdict finding him guilty of reckless assault because, without possession of a weapon to cause injury, defendant could not have injured the complainant and injury is an essential element of assault.

A claim of repugnancy in the verdict is waived for failure to object to the verdict prior to the discharge of the jury (see, People v. Alfaro, 66 NY2d 985; People v. Stahl, 53 NY2d 1048). Here, the issue was not raised until after the discharge of the jury. In any event, a guilty verdict on one count should only be set aside as repugnant if it is inherently inconsistent with a verdict of not guilty on another count and where the acquittal on one crime as charged to the jury is conclusive as to a necessary element of the other crime, as charged, on which the guilty verdict was rendered. People v. Tucker, 55 NY2d 1, 4, rearg. denied, 55 NY2d 1039 (1982); People v. La Pella, 135 AD2d 735 (2nd Dept. 1987), appeal denied, 71 NY2d 898 (1988). "Review of the entire record in an attempt to divine the jury's collective mental process of weighing the evidence is inappropriate." People v. Tucker, supra at 4.

The defendant is mistaken in concluding that, because the jury acquitted him of criminal possession of a weapon, it found that he did not possess the bottle used to strike the complainant. The jury was instructed that, in order to convict defendant of the weapon charge, it had to find, beyond a reasonable doubt, that defendant possessed the bottle with the intent to use it unlawfully against the complainant.

It is apparent, from the overall verdict, that the jury concluded the defendant's actions were reckless rather than intentional. Thus, possession of a bottle, absent an intent to use it unlawfully, would not be criminal and defendant's acquittal on that charge is completely consistent with the jury's verdict of guilty as to reckless assault and not guilty as to intentional assault. Although both assault charges have an overlapping element, the causation of physical injury to the complainant, they have differing mens rea and, thus, defendant's acquittal of intentional assault did not conclusively demonstrate a failure of proof as to any element of reckless assault. The verdict was, therefore, not repugnant. see, People v. Goodfriend, 64 NY2d 695 (1984); People v. Jones, 126 AD2d 401 (1st Dept. 1987).

Defendant's motion to set aside the verdict argues that there was no evidence from which a rational person could have concluded that the defendant acted recklessly. Defendant concedes that the complainant sustained physical injury but contends that, based on the evidence, defendant did not have the time to contemplate his actions and realize the risk created. Accordingly, defendant says, he was not shown to have acted recklessly. The defendant also urges that the complainant was not a credible witness. [*4]

The defendant's contention, that the evidence supporting the conviction is insufficient as a matter of law, is without merit. In reviewing the sufficiency of the evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial. People v. Bleakly, 69 NY2d 490, 495 (1987).

"The standard for reviewing the legal sufficiency of evidence in a criminal case is whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v. Calabria, 3 NY3d 80, 81 [2004], citing People v. Contes, 60 NY2d 620, 621 [1983]).

In Calabria, the Court of Appeals said further; "we have previously recognized that the testimony of one witness can be enough to support a conviction, noting that it is typically the province of the jury to determine a witness's credibility ( see, People v. Arroyo, 54 NY2d 567, 578 [1982])". Id at 82.

A person is guilty of assault in the third degree when he recklessly causes physical injury to another person. PL § 120.00(2). A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk (of inflicting injury). The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. PL § 15.05(3).

Defendant's position is that the evidence did not establish that he acted recklessly because there is no proof that he had time to consider his actions, gain knowledge of the risk and make a choice to disregard it. Reckless assault does not require proof of a time interval during which a defendant may premeditate or assess an intended action. Indeed, the nature of reckless conduct is inconsistent with such contemplation. A rational juror could well have concluded, on the basis of the evidence presented, that defendant, when he swung the beer bottle at the complainant's face, simultaneously was aware of the serious risk of injury his action created and chose to disregard it.

"While defendant's state of mind is the critical element in determining whether he perceived and disregarded the risk of harm, 'objective evidence of the surrounding circumstances may be weighed in making the factual determination.'" People v. Leonard, 89 AS2d 214, 218 (4th Dept. 1982), aff'd 60 NY2d 683, citing People v. Licitra, 47 NY2d 554, 559 (1979). (see also, In the Matter of Robert W., 212 AD2d 1005 (4th Dept 1995).

Furthermore, there is evidence in the record, from the defendant's own testimony, that he had consumed two to three mixed drinks containing vodka during the approximately two and one half hours preceding the assault (the defendant testified that he arrived at the club at approximately 11:30 PM. The People's witnesses put the time of the assault at approximately 2 AM.). From that testimony, and defendant's behavior as described by others, a rational jury conceivably could have concluded that the defendant was intoxicated. (cf. People v. Hill, 255 [*5]AD2d 969 [4th Dept. 1998]). If that were so, then a further provision of PL 15.05(3) would apply and justify the verdict. The last sentence of that statute provides: "a person who creates such a risk [substantial and unjustifiable] but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."

For all the foregoing reasons, defendant's motion, pursuant to CPL 330.30, to set aside the verdict is denied.

This constitutes the decision and order of the court.



Dated: February 15, 2005

New York, New York

______________________ GERALD HARRIS Judge of the Criminal Court

City of New York