People v. McFadden

Pigott, J. (dissenting).

Because, in my view, this case falls squarely within our holding under People v Fuller (96 NY2d 881 [2001]), I respectfully dissent.

In Fuller, at the defendant’s trial, in addition to two robbery charges, the jury deliberated on the charges of assault in the second degree and assault in the third degree, under separate counts of the indictment (id. at 882). Defendant was acquitted of the robbery charges and convicted of third-degree assault (id. at 883). The jury, however, was unable to reach a verdict on the second-degree assault charge (id.). Without objection, the…