The First Department determined the jury was erroneously instructed they could not find the defendant guilty of grand larceny but not guilty of possession of stolen property. A new trial was ordered. The court explained the analytical criteria for a repugnant verdict:
The repugnancy test is “essentially a variant of the theoretical impossibility’ test that is applied in the realm of lesser included offenses” … . Notwithstanding the overwhelming evidence as to both submitted counts in this case, and notwithstanding the practical remoteness of the possibility that a person who commits grand larceny will not also be guilty of criminal possession of the property he or she steals, our examination of the elements of the two crimes persuades us that it is theoretically possible for a person to possess the mental state required for guilt of grand larceny in the third degree, and at the same time lack the mental state necessary for guilt of criminal possession of stolen property in the third degree. Accordingly, the mixed verdict contemplated in the challenged instruction would not have been a repugnant verdict, and the court therefore erred in instructing the jury that it was “not a legally permissible verdict.” People v Simmons, 2016 NY Slip Op 06175, 1st Dept 9-28-16
CRIMINAL LAW (A VERDICT FINDING DEFENDANT GUILTY OF GRAND LARCENY BUT NOT GUILTY OF POSSESSION OF STOLEN PROPERTY WOULD NOT BE REPUGNANT; INSTRUCTING THE JURY OTHERWISE WAS REVERSIBLE ERROR)/REPUGNANT VERDICT (CRIMINAL LAW, A VERDICT FINDING DEFENDANT GUILTY OF GRAND LARCENY BUT NOT GUILTY OF POSSESSION OF STOLEN PROPERTY WOULD NOT BE REPUGNANT)