People v. Mosley

At the charge conference prior to summations, the court indicated to both counsel that it believed that submission of two of the counts charging second degree assault could result in a repugnant verdict. Consequently, counsel were requested to present their respective positions on which of the two counts should be submitted. The prosecutor, after expressing disagreement with the court’s procedure, chose count one, charging that physical injury was caused by means of a dangerous instrument (Penal Law § 120.05 [2]) instead of count three, charging that physical injury was caused while defendant…