Feinman & Gellman PLLC (Justin Feinman of counsel), for appellant. Kings County District Attorney (Leonard Joblove, Jordan Cerruti and Daniel Berman of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Archana Rao, J.), rendered June 20, 2023. The judgment convicted defendant, upon a jury verdict, of assault in the third degree and harassment in the second degree, and imposed sentence. The appeal brings up for review an order of the same court dated June 16, 2023 denying defendant's CPL 330.30 motion to set aside the verdict.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in a prosecutor's information with committing the offenses of assault in the third degree (Penal Law § 120.00 [1], count 1), attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1], count 2), menacing in the second degree (Penal Law § 120.14 [1], count 3), menacing in the third degree (Penal Law § 120.15, count 4), harassment in the second degree (Penal Law § 240.26 [1], count 5), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2], count 6), while acting in concert with another person (see Penal Law § 20.00). Following a jury trial, defendant was convicted of assault in the third degree and harassment in the second degree, and acquitted of menacing in the second and third degrees. The criminal possession of a weapon charge was not submitted to the jury.

Thereafter, defendant moved to set aside the verdict pursuant to CPL 330.30, arguing that the verdict was repugnant; that he was denied a fair trial because the People merged separate acts of assault into one assault count; that he was denied a fair trial because the Criminal Court's assault and justification charges were improper, as the jury was not instructed to consider the justification defense for each separate incident which comprised the assault count; that he was denied a fair trial because the court improperly instructed the jury to consider deadly physical force as part of the justification defense even though the weapons charge was not submitted to the jury; that the prosecutor's comments during summation improperly shifted the burden of [*2]proof to the defense; and that the evidence was legally insufficient to support the assault conviction. By order dated June 16, 2023, the Criminal Court (Archana Rao, J.) denied defendant's motion. Sentence was subsequently imposed on June 20, 2023.

A verdict as to a particular count shall be set aside as repugnant "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 NY2d 1, 7 [1981]), without regard to the accuracy of those instructions (see id.; People v Muhammad, 17 NY3d 532, 539 [2011]; People v Green, 71 NY2d 1006, 1008 [1988]; People v Viruet, 215 AD2d 417 [1995]). "[A] verdict is repugnant 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. If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case" (Muhammad, 17 NY3d at 539-540).

In the case at bar, viewing the elements of the offenses as charged to the jury, we find that the verdict acquitting defendant of menacing in the second and third degrees but convicting him of assault in the third degree and harassment in the second degree was not repugnant. The essential elements of the assault in the third degree and harassment in the second degree counts, as charged, differ from the essential elements of menacing in the second and third degrees counts, as charged (see Tucker, 55 NY2d at 6-7; People v Gardner, 164 AD3d 602, 602 [2018]). While these offenses are often prosecuted together and may implicate similar facts, their elements are distinct and separate (see People v Gorgenyi, 57 Misc 3d 137[A], 2017 NY Slip Op 51298[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Defendant also argues that the Criminal Court's justification charge supports a finding of repugnancy because if the jury found him not guilty of one count due to justification, it had to find him not guilty of all counts. However, as the menacing counts contain separate and distinct elements from the assault and harassment counts, there is clearly a theory pursuant to which a split verdict would be legally permissible (see Muhammad, 17 NY3d at 540).

Defendant contends that he was deprived of a fair trial because the People merged separate acts of assault into one count of assault. "As a general rule[,] it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he [or she] commits but a single crime" (People v Flanders, 25 NY3d 997, 1000 [2015] [internal quotation marks, ellipsis and citation omitted]; see People v Abussalam, 196 AD3d 1000, 1002 [2021]). Here, the record indicates that defendant, while acting in concert with another person, engaged in a course of conduct consisting of several acts, taking place within a one and a half block area and within a short period of time, which, we find, constituted a single count of assault in the third degree (see Abussalam, 196 AD3d at 1002; People v Kelly, 148 AD3d 585 [2017]; People v Oldham, 66 Misc 3d 140[A], 2020 NY Slip Op 50126[U] [App Term, 1st Dept 2020]). Consequently, defendant's contention lacks merit.

Defendant further contends that the Criminal Court's assault and justification charges were improper because they failed to sufficiently instruct the jury how to consider whether justification applied to each separate act that he was alleged to have committed against the complainant; and that the "deadly physical force" part of the justification defense (see Penal Law § 35.15 [2]) was improperly provided to the jury, as the weapons charge was dismissed, and [*3]because there was a question as to whether any alleged force could be considered deadly.

A challenge to a jury charge must include a review of the context and content of the entire charge, reading the charge "as a whole to determine if it was likely to confuse the jury as to the proper burden of proof" (People v Umali, 10 NY3d 417, 427 [2008]). In the case at bar, the Criminal Court used the standard jury charges for assault, justification in the defense of a person, and the "deadly physical force" part of the justification charge, as set forth in the Criminal Jury Instructions (see Penal Law § 35.15), and these charges sufficiently provided the applicable law (see People v Gorton, 195 AD3d 1428, 1430 [2021]). We decline "to assume the basis for any implied inconsistency" with respect to the mixed jury verdict (People v Rayam, 94 NY2d 557, 563 [2000]; see e.g. People v Johnson, 197 AD3d 725, 726 [2021]; People v Zamfino, 160 AD3d 779, 780-781 [2018]).

Despite the fact that the criminal possession of a weapon in the fourth degree count was not submitted to the jury, there was evidence adduced at trial indicating that a crate was used in some way over the course of the events of that day. In "every case where the defendant requests a justification charge, trial courts must view the record in the light most favorable to the defendant and determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant's conduct was justified, and, if so, which instructions are applicable" (People v Vega, 33 NY3d 1002, 1004-1005 [2019]). The question of whether any physical force employed by defendant can be properly categorized as "deadly" is a question of fact for the jury, not a question of law for the court (see People v Powell, 101 AD3d 1369, 1372 [2012]; People v Ogodor, 207 AD2d 461, 462 [1994]; People v Jones, 148 AD2d 547, 548-549 [1989]). When deciding whether to charge "deadly physical force," "the focus should have been on the nature of the risk created, not [on] the consequence of [the] conduct" (People v Bradley, 297 AD2d 640, 642 [2002] [internal quotation marks omitted]). Here, we find that the Criminal Court properly put the question to the jury by charging both physical force (Penal Law § 35.15 [1]) and deadly physical force (Penal Law § 35.15 [2]), thereby allowing the jury to consider the nature of the risk created by defendant's conduct with the crate, not the consequences of the conduct.

We further find that the prosecutor's summation constituted fair comment on the evidence (see People v Ashwal, 39 NY2d 105, 109-110 [1976]; People v Bensabeur, 225 AD3d 891, 892 [2024]; People v Herb, 110 AD3d 829, 831 [2013]), were responsive to arguments and theories presented in defense counsel's summation (see Bensabeur, 225 AD3d at 892; People v Gross, 88 AD3d 905, 906 [2011]), or were permissible rhetorical comment (see Ashwal, 39 NY2d at 109-110; Bensabeur, 225 AD3d at 892). To the extent that some of the prosecutor's comments may have been improper, they were not so pervasive or egregious as to deprive defendant of a fair trial (see Bensabeur, 225 AD3d at 892). We note that, prior to making the comments at issue, the prosecutor reminded the jury that defendant does not have to prove anything, and that it is solely the People's burden of proving that defendant committed an offense. Also, when defense counsel objected to the comments, the Criminal Court immediately provided a curative instruction stating that "the defendant is not required to prove a single thing. That burden rests entirely with the People."

Defendant's contention that the evidence was legally insufficient to sustain his conviction [*4]of assault in the third degree because no evidence was presented that the complainant had fractured his orbital bone lacks merit. The complainant's medical records, which mentioned the fracture, as well as the complainant's own testimony regarding same, were admitted into evidence at trial. In any event, the Criminal Court instructed the jury that physical injury, a necessary element of assault in the third degree (Penal Law § 120.00), is defined as the "impairment of [a] physical condition or substantial pain" (Penal Law § 10.00 [9]), and evidence of same was adduced at trial. The court did not instruct the jury that defendant could only be found guilty of assault if it finds that the complainant's orbital bone had been fractured. As defense counsel made no objection to the charge at trial, "the legal sufficiency of evidence must be viewed in light of the court's charge as given without exception" (People v Ford,11 NY3d 875, 878 [2008]; see People v Sala, 95 NY2d 254, 260 [2000]; People v Dekle, 56 NY2d 835, 836 [1982]). Consequently, we find that the evidence viewed in that light, and in the light most favorable to the People (see People v Ford, 66 NY2d 428, 437 [1985]; People v Contes, 60 NY2d 620, 621 [1983]), was legally sufficient to establish defendant's guilt of assault in the third degree.

Accordingly, the judgment of conviction is affirmed.

BUGGS, J.P., TOUSSAINT and MUNDY, JJ., concur.