| People v Elmy |
| 2014 NY Slip Op 03300 [117 AD3d 1183] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRobert A. Elmy, Appellant. |
Paul J. Connolly, Delmar, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Devin J. Anderson of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered June 8, 2012, upon a verdict convicting defendant of thecrime of assault in the second degree.
On the morning of October 10, 2011, defendant brought the victim—hiswife—to the Glens Falls Hospital in the City of Glens Falls, Warren County,where she presented with an acute subdural hematoma on the right side of her brain,multiple bruises and a blood alcohol level of .40%. The victim contended that herinjuries had been caused by defendant who, over the course of the preceding few days,allegedly assaulted her at their residence—an apartment located above theWhitehall Marina in the Village of Whitehall, Washington County. The victim thereafterwas transferred via LifeFlight to Albany Medical Center in the City of Albany, where sheunderwent emergency surgery to remove a large blood clot from her brain.
Defendant subsequently was charged in a four-count indictment with assault in thesecond degree (two counts), unlawful imprisonment in the first degree and coercion inthe first [*2]degree.[FN1]
The assault counts were premised upon allegations that defendant repeatedly struckand pushed the victim (see Penal Law § 120.05 [1]) andintentionally administered a stupor-producing substance, i.e., alcohol, to her without herconsent and for a purpose other than lawful medical or therapeutic treatment (seePenal Law § 120.05 [5]). Following a jury trial, defendant was convicted ofthe alcohol-based assault and was acquitted of the remaining charges. Defendant'smotion to set aside the verdict was denied, and defendant thereafter was sentenced to2
To the extent that defendant contends that the jury's verdict was repugnant, we notethat this issue has not been preserved for our review (see People v Hawkins, 110 AD3d 1242, 1244 [2013], lvdenied 22 NY3d 1041 [2013]) and, in any event, is lacking in merit. "[A] verdict asto a particular count shall be set aside [as repugnant] only when it is inherentlyinconsistent when viewed in light of the elements of each crime as charged to the jury"(People v Reichel, 110AD3d 1356, 1365 [2013], lv denied 22 NY3d 1090 [2014] [internalquotation marks and citation omitted]; accord People v Muhammad, 17 NY3d 532, 539 [2011]).As the sole count upon which defendant was convicted did not share essentialelements—most notably, the intentional administration of a stupor-producingsubstance—with the remaining crimes charged to the jury, the verdict was notrepugnant.
Although defendant's challenge to the legal sufficiency of the evidence was properlypreserved for our review, we nonetheless find it to be lacking in merit. Insofar as isrelevant here, a person is guilty of assault in the second degree when he or she, "[f]or apurpose other than lawful medical or therapeutic treatment, . . . intentionallycauses stupor, unconsciousness or other physical impairment or injury to another person,by administering to him [or her], without his [or her] consent, a drug, substance orpreparation capable of producing the same" (Penal Law § 120.05 [5]). Evenaccepting, as defendant posits, that alcohol does not qualify as a "drug,"[FN2]
alcohol clearly is—within the plain meaning of the statute—a"substance"[FN3]
capable of producing "stupor, unconsciousness or other physical impairment orinjury to another person" (Penal Law § [*3]120.05 [5]).[FN4]
In this regard, the physician who evaluated the victim in the emergency room atGlens Falls Hospital testified that he could smell alcohol on the victim and that, in hisclinical judgment, it was "obvious . . . that the [victim] was intoxicated."The victim's testimony also demonstrated her degree of impairment on the morning inquestion, as she only vaguely recalled leaving her residence and getting into the car anddid not remember going to the emergency room. Although both the emergency roomphysician and the neurologist who evaluated the victim at Albany Medical Center wereof the view that there was a neurological component to the victim's noted impairment,i.e., "she did not seem [to be] just intoxicated," there also was ampleevidence—namely, the victim's elevated blood alcohol level—from whichthe jury could have concluded that the victim's stuporous condition stemmed, at least inpart, from alcohol consumption.
As to the consent and intent elements of the crime, the victim testified that, duringthe relevant time period, she initially did not know that the SoBe Lifewater and V8Fusion juice that defendant was providing to her contained vodka, she never askeddefendant to bring her beverages that contained alcohol and that, once she became awarethat defendant was spiking her drinks, she continued to consume such beverages onlybecause defendant "was right there and [she] was afraid [of] what he would do to [her]."Additionally, various members of the Glens Falls Police Department and the State Policetestified as to the oral and written statements subsequently obtained from defendant,wherein he readily admitted mixing vodka with the juice and Lifewater he provided tothe victim. Although defendant advised law enforcement officials that the victim was analcoholic and contended that he was providing her with alcohol in an attempt to induceher to go to the hospital and seek treatment, the jury was free to discredit thisexplanation, and defendant's intent may be inferred from the surrounding circumstances(see e.g. Matter of Jesse Z.,116 AD3d 1105, 1106 [2014]; People vCarte, 113 AD3d 191, 195 [2013]; People v Kenyon, 108 AD3d 933, 937-938 [2013], lvdenied 21 NY3d 1075 [2013]). Notably, defendant's stated motivation in this regardis irrelevant (see People v Hibbard, 150 AD2d 929, 930-931 [1989], lvdenied 74 NY2d 848 [1989]).
Finally, as to the medical or therapeutic element of the statute, nothing in the recordsuggests that defendant was a trained medical professional, and his own statementsreflect his admitted awareness as to the harmful effects that alcohol consumption hadupon the victim's health. Indeed, defendant was aware that the victim, whom he believedto be an alcoholic, would "get[ ] bad about every [six] months," suffered from seizures,had metal plates in her head from a prior head injury and had fallen on at least threeoccasions in the days leading up to her October 2011 hospitalization. There also wasevidence in the record from which the jury could have inferred that defendant was awarethat the victim had—separate and apart from her alleged alcoholism—apreexisting liver condition. Despite such awareness, defendant admittedly continued toprovide the victim with alcohol. Based upon the foregoing, we are satisfied that the [*4]verdict is supported by legally sufficient evidence and,further, is not against the weight of the evidence.
We do, however, find merit to defendant's claim that County Court erred inpermitting testimony regarding a series of prior bad acts and/or uncharged crimes thatallegedly occurred in the two weeks preceding October 10, 2011. Although the recordreflects that the People filed a written Molineux application in this regard andCounty Court conducted a hearing with respect thereto, the court thereafter failed toexpressly rule on the prior bad acts/uncharged crimes at issue—stating instead thatit would consider and rule on each of the challenged acts or crimes at trial. During thecourse of the victim's testimony, defense counsel raised various objections with respectto allegations that defendant perpetrated acts of domestic violence against the victim,engaged in nonconsensual sex with her and withheld certain medications from her.County Court summarily overruled such objections, and no corresponding limitinginstructions were provided—either at the time such testimony was received intoevidence or during the course of the court's final charge to the jury.
To be sure, "[p]rior bad acts in domestic violence situations are more likely to beconsidered relevant and probative evidence because the aggression and bad acts arefocused on one particular person, demonstrating the defendant's intent, motive, identityand absence of mistake" (Peoplev Westerling, 48 AD3d 965, 966 [2008]) and, further, may be "relevant toprovide background information concerning the context and history of [the] defendant'srelationship with the victim" (People v Wertman, 114 AD3d 1279, 1280 [2014] [internalquotation marks and citation omitted]). That said, even assuming that all of theuncharged crimes/prior bad acts at issue here,[FN5]
which, as noted previously, included allegations of nonconsensual sex, domesticviolence, bullying and the withholding of certain medications from the victim, fell withinone or more of the recognized Molineux exceptions (see People vMolineux, 168 NY 264, 293 [1901]; People v Brown, 114 AD3d 1017, 1019 [2014]) and indeedconstituted relevant and probative evidence, the record fails to reflect that County Courtbalanced the probative value of such evidence against its prejudicial effect. More to thepoint, even further assuming that our review of the record disclosed evidence of CountyCourt's implicit finding in this regard (see People v Meseck, 52 AD3d 948, 950 [2008], lvdenied 11 NY3d 739 [2008]), the record nonetheless reveals that, despite anappropriate request by defense counsel during the course of the chargeconference,[FN6]
no appropriate limiting instructions were provided to the jury (compare People v Tinkler, 105AD3d 1140, 1143 [2013], lv denied 21 NY3d 1020 [2013]; [*5]People v Leonard, 83 AD3d 1113, 1117 [2011],affd 19 NY3d 323 [2012]; People v Thibeault, 73 AD3d 1237, 1241 [2010], lvdenied 15 NY3d 810 [2010], cert denied 562 US 131 [2011]). The absence of such instructions clearly impacted the jury'sdeliberations—as evidenced by the jury's inquiry as to whether the coercioncharge "encompass[ed] just the use of alcohol or . . . extend[ed] tounwilling sex." Finally, while we discern no basis upon which to disturb the jury'sverdict, we cannot say that the proof of defendant's guilt was overwhelming and,therefore, we are unable to conclude that County Court's error in this regard washarmless (compare People vEchavarria, 53 AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008];People v Meseck, 52 AD3d at 950). Accordingly, the judgment of conviction isreversed and this matter is remitted for a new trial. Defendant's assertion that he wasdenied the effective assistance of counsel is lacking in merit, and his challenge to theseverity of the sentence imposed is academic in light of our reversal.
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isreversed, on the law and as a matter of discretion in the interest of justice, and matterremitted to the County Court of Washington County for a new trial.
Footnote 1:The indictment, whichalleged that the crimes occurred on or about October 10, 2011, subsequently wasamended—over defense counsel's objection—to reflect that such crimesoccurred on or about October 9, 2011 through October 10, 2011.
Footnote 2:The definition of "drug"includes, among other things, "something[,] and often an illegal substance[,] that causesaddiction, habituation, or a marked change in consciousness" (Merriam-Webster OnlineDictionary, http://www.merriam-webster.com/dictionary/drug [accessed Apr. 29, 2014]).
Footnote 3:A "substance" is definedas, among other things, "something (as drugs or alcoholic beverages) deemed harmfuland usually subject to legal restriction" (Merriam-Webster Online Dictionary,http://www.merriam-webster.com/dictionary/substance [accessed Apr. 29, 2014]).
Footnote 4:To the extent that thisproposition is not self-evident or otherwise within the common understanding of alayperson, the record contains expert medical testimony from which the jury reasonablycould have drawn such an inference.
Footnote 5:The majority of theerrors asserted in this regard were preserved for our review by appropriate application orobjection and, as to the balance, we deem this to be an appropriate instance in which totake corrective action in the interest of justice.
Footnote 6:Notably, although thePeople opposed defense counsel's request for limiting instructions at the time of trial,they acknowledged the need for "prompt and proper instruction[s] to the jury" in theirpretrial Molineux application.