
    The People of the State of New York, Respondent-Appellant, v John Loughlin, Appellant-Respondent.
    Argued June 1,1990;
    decided July 5, 1990
    
      APPEARANCES OF COUNSEL
    
      William, J. Breuer and Paul J. Kenny for appellant-respondent.
    
      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

As a result of an automobile collision in which the driver of the other vehicle was killed and two passengers seriously injured, defendant was charged in a five-count indictment with vehicular manslaughter, second degree, criminally negligent homicide, two counts of vehicular assault and driving while intoxicated. At the conclusion of the trial, the court instructed the jury that vehicular manslaughter consisted of criminal negligence, while intoxicated, which caused a death, that criminally negligent homicide consisted of exactly the same elements, except intoxication, that vehicular assault consisted of criminal negligence, while intoxicated, resulting in serious physical injury. It directed the jury to consider first vehicular manslaughter and instructed it that if it found defendant guilty of that count it did not have to consider criminal negligence or driving while intoxicated but it could proceed to the vehicular assault counts. The only charge down was operating a motor vehicle while ability impaired as a lesser included offense of count 5, operating a motor vehicle while under the influence of alcohol.

After commencing deliberations, the jury returned to the courtroom and asked the court to explain the difference between vehicular manslaughter and criminally negligent homicide. The court repeated its earlier instructions, reminding the jury that a conviction of the first required a finding that defendant was driving his vehicle while intoxicated and that the latter did not. Having clarified the distinction, the jury continued its deliberations but subsequently returned to the courtroom and requested the court to redefine criminal negligence. After receiving the court’s supplemental instructions on this issue, the jury found defendant guilty of criminally negligent homicide and two counts of vehicular assault.

The jury was polled and confirmed its verdicts. Before it was dismissed defense counsel requested that the jury be returned to the jury room pursuant to CPL 310.50 to reconsider its verdict or that the verdicts be set aside as repugnant. The court refused both requests, entered the verdicts and directed the parties to prepare posttrial submissions on repugnancy. The court subsequently set aside the vehicular assault counts but left standing the criminally negligent homicide verdict. The Appellate Division affirmed the disposition of the verdicts but modified the sentence.

Whether verdicts are repugnant or inconsistent (the difference is inconsequential) is determined by examining the charge to see the essential elements of each count, as described by the trial court, and determining whether the jury’s findings on those elements can be reconciled (see, People v Tucker, 55 NY2d 1, 6-7). The critical concern is that a defendant should not be convicted of a crime when the jury has found that he did not commit one or more of its essential elements (id., at 6).

In this case, the jury had been specifically instructed that the only difference between vehicular manslaughter and criminally negligent homicide was the element of intoxication. It rejected the claim that defendant had driven while intoxicated and accepted the claim that he was guilty of criminal negligence. Accordingly, its finding of guilt on the vehicular assault charges was inconsistent with the acquittal on vehicular manslaughter and the court correctly set them aside. Moreover, having been instructed on the difference between vehicular manslaughter and criminally negligent homicide, the jury rejected one and proceeded to weigh the other, asking for further instructions on negligence before eventually convicting defendant of it.

On this appeal, defendant urges that when the inconsistent verdicts were returned the court was required to direct the jury to deliberate further. While it may have been advisable for the court to do so, we held in People v Robinson (45 NY2d 448) that CPL 310.50 (2) did not create a per se rule: "resubmission is required only where the verdict returned by the jury exhibits a confusion on the part of the jury such that its intention with respect to individual counts of the indict-merit is uncertain.” (Id., at 453.) We find no evidence of confusion here and none establishing that the jury held defendant guilty of a crime on which it had found he did not commit an essential element (see, People v Tucker, supra). Manifestly, the jury’s verdicts in the vehicular manslaughter and vehicular assault counts are irreconcilable because in one they found defendant was not intoxicated while in the others they found he was. There is no view of the verdicts, however, which would demonstrate that the jury found defendant both was and was not guilty of criminal negligence. It is clear that it believed that the defendant acted with criminal negligence and was guilty of criminally negligent homicide, despite its inconsistent verdicts as to the crimes that had intoxication as an element. Because the jury’s intent as to this count of the indictment was unequivocal, there was no need to resubmit the case to the jury.

Defendant also urges that that evidence was legally insufficient to support the jury’s verdict of criminal negligence. There was evidence that defendant had been drinking and that he was driving at an excessive rate of speed on an obstructed street under construction in a residential neighborhood. The jury was entitled to accept this evidence and it was sufficient to support its verdict (see, People v Boutin, 75 NY2d 692; People v Paul V. S., 75 NY2d 944; People v Ricardo B., 73 NY2d 228).

The issue raised by the People on their cross appeal has not been preserved for our review.

Kaye, J.

(dissenting in part). Where the jury’s verdict is contradictory, today’s decision authorizes judicial resolution of the contradiction in virtually all cases, and is a substantial step beyond the carefully limited exception to CPL 310.50 (2) established by People v Robinson (45 NY2d 448). Because I believe that CPL 310.50 (2) represents a precisely contrary legislative intent — that the jury is where such problems should be settled and guilt or acquittal of particular charges decided — I dissent.

The relevant language of CPL 310.50 (2) is mandatory: "If the jury renders a verdict which in form is not in accordance with the court’s instructions or which is otherwise legally defective, the court must explain the defect or error and must direct the jury to reconsider such verdict, to resume its deliberation for such purpose, and to render a proper verdict.” (Emphasis added.)

In Robinson, the jury failed to comply with the court’s instructions to consider the counts of criminal possession with intent to sell a controlled substance and the inclusory concurrent counts of simple possession in the alternative. Instead, it returned a guilty verdict on both sets of counts. After recording the verdict, the trial court dismissed the simple possession counts over counsel’s objection that the case should be resubmitted to the jury. We rejected the defendant’s literal interpretation of subdivision (2) of CPL 310.50, stating that "absent the return of a verdict about which confusion exists as to the intention of the jury, the jury’s failure to comply with the trial court’s instructions does not, per se, require submission of the case to the jury for reconsideration of its verdict.” (People v Robinson, 45 NY2d, at 452.) Indeed, we noted that "to a jury unschooled in the doctrine of lesser included offenses, a verdict of guilty on those counts of the indictment charging criminal possession with intent to sell as well as those charging criminal possession of a controlled substance must appear quite consistent. ” (Id., at 453; emphasis added.)

That cannot be said of the present case. The jury convicted defendant of negligent homicide, but acquitted him of vehicular manslaughter. Thus, the jury necessarily found that the People had failed to prove intoxication. However, the jury also convicted defendant on the vehicular assault charges — a finding that was utterly inconsistent with a determination that intoxication had not been proved. Unlike Robinson, here such a verdict could not possibly "appear quite consistent” to a jury.

In Robinson, we went on specifically to distinguish the factual situation presented in People v Salemmo (38 NY2d 357), "in which the jury returned with a verdict convicting the defendant of criminal sale of a dangerous drug and possession of a dangerous drug with intent to sell, but acquitting him of simple possession. In such a case, the jury’s apparent confusion is evident in its return of an inherently inconsistent verdict.” (45 NY2d, at 453.) Exactly that happened here: the jury’s apparent confusion is evident in its return of an inherently inconsistent verdict.

The majority now declares that unless "the jury held the defendant guilty of a crime on which it had found he did not commit an essential element,” there is "no evidence of confusion” (majority mem, at 807), and resubmission is not required. This is, of course, an entirely new rule. It cannot be derived from the commonsense observation in People v Robinson (supra, at 453), that there is no resubmission requirement where the jury’s verdict is, in fact, completely consistent. To the contrary, as a matter of common sense and usage, it is difficult to understand how the majority can perceive "no evidence of confusion” when the jury apparently determined that defendant both was, and was not, intoxicated. Indeed, even applying the rule the majority now creates, the case should have been resubmitted, as the jury did find defendant guilty of a crime (vehicular assault) of which it also found he did not commit an element (intoxication).

The explanation for the result reached is that, relying on Robinson’s passing reference to uncertainty concerning the jury’s "intention with respect to individual counts of the indictment” (People v Robinson, 45 NY2d, at 453, supra; emphasis added), the court has somehow determined that it is clear that the jury intended to convict defendant of negligent homicide. Such judicial smoothing over of obvious juror confusion is a direct intrusion into the determination CPL 310.50 (2) commits to the jury. Notably, the statute requires the trial court to record an acquittal on an individual count if it is clear that the jury intended to find the defendant not guilty on that count, but contains no similar authorization for the trial court to determine that it is clear the jury intended to find the defendant guilty on a particular count despite the inconsistency of the verdict. The new rule advanced by the majority might be acceptable if the inconsistency in the verdict involved counts completely unrelated to the one at issue. Even if, as the majority surmises, it is "clear” that the jury "believed” defendant was guilty of criminally negligent homicide, it is far from clear that they grasped the trial court’s instructions concerning the law of criminal negligence —an element common to the counts on which their verdict demonstrated their confusion. If indeed the jurors understood all of the relevant concepts, then upon resubmission they would again have found defendant guilty of criminally negligent homicide. However, it is not for us retrospectively to guess the source of the jury’s apparent confusion.

Finally, I would note that the new rule is at odds with our longstanding insistence that a claim of repugnancy in a verdict be raised before the jury is discharged in order to preserve the error for appellate review. We have explained this strict rule as one designed to "permit[ ] the court to resubmit the matter to the jury to obtain a consistent verdict” (People v Alfaro, 66 NY2d 985, 987). In a case such as this, that requirement is pointless if courts will now be permitted to resolve the matter on their own.

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye dissents in part and votes to reverse on defendant’s appeal in an opinion in which Judge Alexander concurs.

Orders affirmed in a memorandum.  