The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
The primary issue in these appeals is whether the jury verdicts convicting defendants of assault but acquitting them of criminal possession of a weapon are legally repugnant. For the reasons that follow, we hold that the verdicts are valid.
Defendant Shahid Muhammad was indicted for attempted murder in the second degree (Penal Law §§ 110.00, 125.25 ), assault in the first degree (Penal Law § 120.10 ) and criminal possession of a weapon in the second degree (Penal Law § 265.03
 [b]) for allegedly shooting another man several times during a street altercation. The victim, who had known Muhammad for years prior to the shooting, was the only eyewitness. Before trial, defense counsel sought permission to introduce expert testimony on the topic of eyewitness identifications. The trial court denied the request on the basis that the jurors were capable of evaluating the victim's opportunity to observe the shooter and weigh the significance of his initial failure to identify the gunman to police.
At the conclusion of proof, the judge charged the jury that Muhammad could be convicted of first-degree assault if he "caused serious physical injury to [the victim] by means of a deadly weapon, and that he did so with an intention to cause such serious physical injury" to the victim. On the count of second-degree weapon possession, the jury was instructed that the People had to prove that Muhammad "possessed a loaded firearm. Two. That he did so knowingly. Three. That the gun was operable. Four. That he possessed this firearm with the intent to use it unlawfully against" the victim. After deliberation, the jury acquitted Muhammad of attempted murder and second-degree weapon possession but found him guilty of first-degree assault. Before the jury was discharged, defense counsel objected to the verdict on the ground that the weapon possession acquittal was repugnant to the conviction for assault. The trial court rejected that argument, stating that the jury was allowed to infer that Muhammad "possessed the gun without a criminal intent, or an intent to use it unlawfully earlier in the evening prior to deciding to shoot" the victim.
The Appellate Division affirmed (66 AD3d 1332 [4th Dept 2009]), holding that the verdict was not repugnant because the trial court's instructions "'did not preclude the jury from concluding that defendant initially possessed the loaded pistol without intending to use it unlawfully against another, but decided to fire the gun at [the victim] as events unfolded'" (id. at 1333, quoting People v Afrika, 291 AD2d 880, 881 [4th Dept 2002], lv denied 98 NY2d 648 ).
A Judge of this Court granted defendant leave to appeal (13 NY3d 940 ).
Defendant Gregory Hill was indicted for assault in the second degree (Penal Law § 120.05 ) and criminal possession of a weapon in the third degree (Penal Law § 265.02 ) for allegedly hitting an acquaintance in the head with a hammer after he became angry when the contents of an ashtray and beer were spilled on his couch. Prior to jury deliberations, the trial court instructed the jurors that to convict Hill of second-degree assault, they had to find that he "caused physical injury to [the victim] by means of a dangerous instrument; and, two, that the Defendant did so with the intent to cause physical injury" to the victim. On the count of third-degree weapon possession, the jurors were charged that the People had to prove that "Hill possessed a hammer; two, that the Defendant did so knowingly; and, three, that the Defendant did so with intent to use such hammer unlawfully against another."
The jury subsequently issued two notes indicating that their deliberations had resulted in a deadlock and the trial court responded with Allen charges. The jury ultimately found Hill not guilty of third-degree weapon possession but guilty of second-degree assault. Before the jury was discharged, defense counsel objected to the verdict on repugnancy grounds, claiming that Hill could not have intentionally assaulted the victim with a hammer unless he also possessed the hammer with the intent to use it unlawfully against the victim. The trial court disagreed, denied the motion and discharged the jury.
In affirming the judgment (70 AD3d 1487 [4th Dept 2010]), the Appellate Division concluded that the verdict was not repugnant because the trial court's charge did not preclude the jury from deciding that Hill did not have an intent to use the hammer unlawfully when he initially possessed it. The court found Hill's other arguments to be meritless.
A Judge of this Court granted Hill leave to appeal (15 NY3d 774 ).
Defendants contend that the verdicts were legally repugnant because it is impossible to intentionally injure a person with a weapon that a jury has found the accused did not possess with the intent to use unlawfully. Their argument is focused on the intent elements of assault and weapon possession, claiming that it is inconsistent for a jury to find that a defendant did not possess a weapon with an intent to use the weapon unlawfully against another person and, at the same time, determine that a defendant intended to inflict serious physical injury with the weapon. The People, in contrast, adopt the rationale of the Appellate Division and claim that the jury instructions in these cases allowed the jurors to consider the state of mind of the accused at the time the weapon was initially possessed or acquired and before the formation of an intent to use it unlawfully against another.
The issue of repugnant verdicts has long been grappled with by the courts in our nation (see e.g. Dunn v United States, 284 US 390 [1932, Holmes, J.]). The U.S. Supreme Court settled this question for federal courts when it unanimously held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent (see e.g. United States v Powell, 469 US 57, 63 , citing Harris v Rivera, 454 US 339, 346  [a jury has the "unreviewable power . . . to return a verdict of not guilty for impermissible reasons"]). The Supreme Court has further declined to address repugnancy under its supervisory powers over the federal criminal process because, among other reasons, "[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake" (Powell, 469 US at 66, quoted in People v Rayam, 94 NY2d 557, 563 ). Hence, federal courts do not review verdicts under the theory of repugnancy.
New York, in contrast, has chosen a more moderate approach that extends better protection against verdicts that are inherently repugnant on the law. Our standard for judging whether a verdict is legally repugnant was articulated in 1981 in People v Tucker (55 NY2d 1). We held that "a verdict as to a particular count shall be set aside" as repugnant "only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury" (id. at 4) without regard to the accuracy of those instructions (see id. at 7; see also People v Green, 71 NY2d 1006, 1008 ; People v Hampton, 61 NY2d 963, 964 ). The underlying purpose of this rule is to ensure that an individual is not convicted of "a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all" (Tucker, 55 NY2d at 6). A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt.*fn1
We recognized in Tucker that a jury "may freely reject evidence and exercise its mercy function" by rendering a verdict that appears to be factually illogical (id. at 8). A jury is therefore free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court's legal instructions. In light of the difficulty in assessing the basis of jury determinations, we devised a repugnancy test in Tucker that prohibits consideration of the particular facts of the case (Tucker, 55 NY2d at 4, 6-7; see e.g. People v Rayam, 94 NY2d at 561; People v Johnson, 70 NY2d 819, 820  [a repugnancy claim must be "[e]xamined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case"]).*fn2 Thus, under the Tucker rule,"[t]he instructions to the jury will be examined only to determine whether the jury, as instructed, must have reached an inherently self-contradictory verdict" (Tucker, 55 NY2d at 8; see also People v Trappier, 87 NY2d 55, 58 ).
Tucker is essentially a variant of the "theoretical impossibility" test that is applied in the realm of lesser included offenses (see e.g. People v Davis, 14 NY3d 20, 22-23 ). Under this comparable approach, a verdict is repugnant only if it is legally impossible -- under all conceivable circumstances -- for the jury to have convicted the defendant on one count but not the other. If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support in a particular case (see People v Vargus, 79 AD3d 526, 527 [1st Dept 2010], lv denied 16 NY3d 800 ). In this context, the apparently illogical nature of the verdict -- as opposed to its impossibility -- is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine a verdict as a matter of law (see generally People v Horne, 97 NY2d 404, 413 ; People v Rayam, 94 NY2d at 561-563; People v Goodfriend, 64 NY2d 695, 697 ; People v Tucker, 55 NY2d at 7).
We further explained in Tucker how the repugnancy analysis should operate (see 55 NY2d at 6 n 2). As an example, Tucker cited a case where charge 1 requires proof of elements A, B and C; charge 2 requires proof of elements A, B, C and D. If the jury convicts a defendant on the second charge, thereby finding that all four elements have been proven beyond a reasonable doubt, but acquits on the first charge, the verdict is repugnant since the acquittal "would necessarily involve a finding that at least one of the essential elements of charge 2" -- either A, B or C -- was not proven beyond a reasonable doubt (id.). As an extension of that hypothetical, if in another case the elements of charge 1 were A, B, C and E (rather than D), an acquittal on that count would not necessarily negate guilt on charge 2 because the jury could ...