CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s conviction of endangering the welfare of a child should not have been set aside based upon his acquittal on all 27 counts of criminal sexual act involving a 10-year-old child. Because the appeal was brought by the People, the court was statutorily prohibited from considering defendant’s argument that the indictment was jurisdictionally defective:

The Court of Appeals has held that a factual inconsistency in the verdict does not render “the record evidence legally insufficient to support the conviction” … . “Where a jury verdict is not repugnant, it is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency” … . Thus, in this case, the acquittals of the criminal sexual act and sexual abuse counts did not render the evidence legally insufficient to support the conviction of endangering the welfare of a child … .

Although the Court of Appeals has noted that reviewing courts may consider jury acquittals “in some instances on legal issues such as the sufficiency of the evidence or errors in the admissibility of evidence” … , such consideration is appropriate to the extent that the acquittal provides information about the basis of, or the theory underlying, the jury’s finding of guilt on another count … . With this understanding of the basis or theory of the conviction on that other count, the court may then determine whether there was legally sufficient evidence to support that conviction … . That determination is based on an independent review of the evidence presented at trial, and is not controlled by the jury’s acquittal on the other charge … . People v Sturges, 2018 NY Slip Op 05703, Second Dept 8-8-18

CRIMINAL LAW (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/ENDANGERING THE WELFARE OF A CHILD (CONVICTION OF ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN SET ASIDE BASED UPON THE ACQUITTALS ON THE REMAINING 27 COUNTS OF CRIMINAL SEXUAL ACT, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT))/APPEALS (CRIMINAL LAW, PEOPLE’S APPEAL, COURT CANNOT CONSIDER DEFENDANT’S ALTERNATIVE ARGUMENT FOR AFFIRMANCE ON AN APPEAL BROUGHT BY THE PEOPLE (SECOND DEPT)