| People v Felice |
| 2007 NY Slip Op 09268 [45 AD3d 1442] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Philip Felice,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered September 14, 2005. The judgment convicted defendant, upon a jury verdict, of assaultin the first degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the first degree (Penal Law § 120.10 [2]) and assault in the second degree(§ 120.05 [1]). Defendant failed to preserve for our review his contention that theconviction of assault in the first degree is not supported by legally sufficient evidence (seePeople v Gray, 86 NY2d 10, 19 [1995]). In any event, his contention is without merit. Theevidence, viewed in the light most favorable to the People (see People v Contes, 60NY2d 620, 621 [1983]), establishes that defendant bit the victim's nose, which caused a one-inchlaceration that penetrated both the skin and the nasal cavity. At the time of trial, the victim stillhad a visible scar. That evidence is legally sufficient to establish that defendant intentionallydisfigured another person, both seriously and permanently (see Penal Law § 120.10[2]; People v Kenney, 291 AD2d 331 [2002], lv denied 98 NY2d 638 [2002];People v Elforte, 220 AD2d 332 [1995], lv denied 87 NY2d 921 [1996]).
Supreme Court properly denied defendant's request to charge reckless assault in the thirddegree (see Penal Law § 120.00 [2]) as a lesser included offense of assault in thefirst degree. There is no reasonable view of the evidence that would support a finding thatdefendant committed the lesser offense but not the greater offense, i.e., that defendant causedphysical injury but not serious physical injury (see People v Hatten, 28 AD3d 1247 [2006], lv denied 7NY3d 813 [2006]; People vVasquez, 25 AD3d 465, 466 [2006], lv denied 6 NY3d 854 [2006]). Defendantfurther contends that the court should have charged assault in the third degree as a lesser includedoffense of assault in the first degree because evidence of his intoxication would allow the jury tofind that he acted recklessly but not intentionally. We reject that contention (see generallyPeople v Butler, 84 NY2d 627, 630-633 [1994]; People v Cody, 260 AD2d 718, 719[1999], lv denied 93 NY2d 1002 [1999]). The evidence here supported the finding thatdefendant either intentionally bit the victim's nose or, by reason of intoxication, was unable toform the specific intent to do so (seePeople v [*2]Echevarria, 17 AD3d 204 [2005],affd 6 NY3d 89 [2005]; Butler, 84 NY2d at 634; Cody, 260 AD2d at719), but it does not support the finding that defendant recklessly caused injury to the victim(see People v Funchess, 284 AD2d 478 [2001], lv denied 96 NY2d 939 [2001]).
Defendant failed to renew his motion for a trial order of dismissal after presenting evidenceand thus failed to preserve for our review his contention that, based on his level of intoxication,the evidence is legally insufficient to establish that he possessed the requisite intent to committhe crimes of which he was convicted (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). In any event, his contention is without merit (see People v DeJesus, 16 AD3d1112, 1112-1113 [2005], lv denied 4 NY3d 853 [2005]). Although there wasevidence at trial that defendant consumed a significant quantity of alcohol on the night of theincident, "[a]n intoxicated person can form the requisite criminal intent to commit a crime, and itis for the trier of fact to decide if the extent of the intoxication acted to negate the element ofintent" (People v Gonzalez, 6 AD3d457 [2004], lv denied 2 NY3d 799 [2004]; see People v LaGuerre, 29 AD3d 820, 822 [2006], lvdenied 7 NY3d 814 [2006]; People v Jackson, 269 AD2d 867 [2000], lvdenied 95 NY2d 798 [2000]). The jury's determination is supported by the record (seeLaGuerre, 29 AD3d at 822). Contrary to the further contention of defendant, he receivedeffective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Similarly, by failing to renew his motion for a trial order of dismissal after presentingevidence, defendant failed to preserve for our review his contention that the conviction of assaultin the second degree is not supported by legally sufficient evidence (see Hines, 97 NY2dat 61). We have reviewed defendant's remaining contentions and conclude that they are withoutmerit. Present—Hurlbutt, J.P., Martoche, Smith, Centra and Fahey, JJ.