Opinion
Argued February 21, 1984
Decided March 22, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, John J. Reilly, J.
Mario Merola, District Attorney ( Jeremy Gutman and Peter D. Coddington of counsel), for appellant.
Henry Winestine and William E. Hellerstein for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
The trial court charged the jury that if it found that either defendant did not act in concert with the other then it must acquit both defendants. When the jury found defendant Coley not guilty and the defendant Hampton guilty the verdict was clearly repugnant under the court's charge.
The determination as to the repugnancy of the verdict is made solely on the basis of the trial court's charge and not on the correctness of those instructions ( People v Tucker, 55 N.Y.2d 1). Because an examination of the instructions given to the jury in this case shows that the verdict returned was inherently contradictory, the trial court properly dismissed the charge against the defendant ( People v Carbonell, 40 N.Y.2d 948).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed in a memorandum.