81 A.D.2d 513 | N.Y. App. Div. | 1981
— Judgment of conviction, Supreme Court, Bronx County, rendered April 18, 1979, after jury trial, unanimously reversed, on the law, and, as to the second count of the indictment, assault, first degree (Penal Law, § 120.10, subd 1), matter remanded to Supreme Court, Bronx County, for a new trial, and, as to the third count of the indictment, criminal possession of a weapon, fourth degree (Penal Law, § 265.01, subd [2]), the jury’s verdict of guilty is vacated, and its earlier verdict of acquittal reinstated, and directed to be entered as the judgment of the court on that count. At the outset, we must indicate that, since defendant-appellant’s trial counsel
. “2. A person may not use deadly physical force upon another person *** unless: *** (b) He reasonably believes that such other person is *** attempting to commit a *** forcible rape”.
. While “we cannot look behind the jury’s verdict to determine why it chose to acquit on one count and not another” (People v Hudson, 70 AD2d 740, 742), we must consider all the possibilities.