People v. Torres

OPINION OF THE COURT

Memorandum.

Judgment of conviction unanimously reversed on the law *777and accusatory instrument dismissed.

In the case at bar, given the jury instruction, defendant’s conviction of menacing in the second degree was inconsistent with his acquittal of criminal possession of a dangerous weapon in the fourth degree (see, People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039). In reaching this result, we are of the opinion that the fact that the court in its charge to the jury specifically referred to a knife in the criminal possession count while simply referring to a “dangerous instrument” in the menacing count, does not warrant a different result (cf., People v Powell, 171 AD2d 1026; People v Jamerson, 99 AD2d 816). The factual part of the accusatory instrument referred only to a knife and the court in its charge made no mention of any other weapon.

Aronin, J. P., Patterson and Golia, JJ., concur.