| People v Rolfe |
| 2011 NY Slip Op 02972 [83 AD3d 1217] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Rolfe,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered November 20, 2009, upon a verdict convicting defendant of the crimes of assault in thesecond degree and criminal mischief in the fourth degree.
In December 2008, defendant left a party after consuming a large amount of alcohol andbecoming intoxicated. When he and several others arrived at his girlfriend's apartment, theydiscovered that they had no keys. Apparently unaware that his girlfriend had gained accessthrough a nearby window, defendant used his elbow to break glass in a door, lacerating his arms.Emergency personnel were called to the scene to provide medical assistance. Defendant becamecombative, shoving an emergency medical technician, punching a police officer several timesand knocking him to the floor, and twice holding his girlfriend off the floor by her throat. Afterbeing handcuffed and subdued, defendant was hospitalized for treatment of his injuries.
Defendant was subsequently convicted by jury verdict of assault in the second degree andcriminal mischief in the fourth degree, and acquitted of, among other crimes, obstructinggovernmental administration in the second degree. He was sentenced as a second felony offenderto an aggregate prison term of six years and five years of postrelease supervision. Defendantappeals.[*2]
Initially, defendant contends that the verdict was againstthe weight of the evidence because the People failed to prove that he acted with the requisiteintent to support his convictions. Based on evidence that defendant was extremely intoxicated,lost a significant amount of blood, and appeared confused and incoherent at times during theencounter, a different verdict would not have been unreasonable (see Penal Law §15.25). Thus, this Court must "weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People vBleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]; accord People v Davis, 72 AD3d1274, 1276 [2010]). " 'Whether an individual's level of intoxication negates the element ofintent to commit a crime lies within the domain of the jury as the trier of fact' " (People v Hazen, 20 AD3d 586,588 [2005], lv denied 5 NY3d 806 [2005], quoting People v Keller, 246 AD2d828, 829 [1998], lv denied 91 NY2d 1009 [1998]). The police officers who arrived inresponse to the call were in uniform. During his physical altercation with them, defendantrevealed awareness that he was fighting with police officers by calling them "f . . .ing pigs" and ordering them to get out of the house. When he was eventually handcuffed,defendant's resistance disappeared and he told the officers, "You got me. I'm done." In theexercise of our independent review power, we find that appropriate weight was given to thisevidence that defendant understood his own actions despite his inebriated state and, thus, that theverdicts were not against the weight of the evidence (see People v Burch, 45 AD3d 1188, 1189 [2007]; People vHazen, 20 AD3d at 588-589).
Defendant next contends that the jury verdict convicting him of assault in the second degreeis repugnant to his acquittal on the charge of obstructing governmental administration. It isconceded that this claim was not preserved for appellate review, as it was not raised in CountyCourt before the jury was discharged (see People v Alfaro, 66 NY2d 985, 987 [1985]; People v Murphy, 66 AD3d 1234,1236 [2009]), and we decline the request to take corrective action pursuant to our interest ofjustice jurisdiction (see CPL 470.15 [6] [a]; People v Pearson, 69 AD3d 1226, 1227 [2010], lv denied15 NY3d 755 [2010]; compare People vCoville, 73 AD3d 1232, 1233 [2010]).
Next, we are unpersuaded by defendant's contention that County Court erred by denying hisrequest to instruct the jury, as part of the intoxication charge, that the element of intent couldhave been negated by physical impairment caused by his blood loss. The jury heard testimonyfrom which it could have concluded that defendant's blood loss, as well as his intoxication,affected his general cognitive abilities. Although the court refused this requested charge, itrepeatedly instructed the jury that intent means "conscious objective or purpose"[FN*]and gave an intoxication instruction that mirrored the pattern jury instruction for that defense(see CJI2d[NY] Defense, Intoxication; People v Hebert, 68 AD3d 1530, 1532 [2009], lv denied 14NY3d 841 [2010]). Notably, no pattern jury instruction exists for a defense of physicalimpairment resulting from blood loss, nor is such a theory of defense generally recognized(see generally 35 NY Jur 2d, Criminal Law §§ 64-200). No specificlanguage is required in jury instructions "so long as the charge, as a whole, correctly conveys theproper standards for the jury to apply" (People v Marshall, 65 AD3d 710, 713 [2009], lv denied 13NY3d 940 [2010]; see People v Jackson, 282 AD2d 830, 831 [2001], lv denied96 NY2d 902 [2001]). Viewing the evidence, as required, in the light most favorable todefendant (see People v Gaines, 83 NY2d 925, 926-927 [1994]), we find that the chargeas a whole "was sufficient to allow 'the jury . . . [to] gather from its language [*3]the correct rules which should be applied in arriving at [a] decision'" (People v Dickson, 58 AD3d 1016, 1018 [2009], lv denied 12 NY3d 852[2009], quoting People v Russell, 266 NY 147, 153 [1934]).
Finally, defendant contends that his five-year sentence for assault in the second degree washarsh and excessive in view of his intoxication at the time of the incident and his history ofalcohol abuse. We disagree. We find no extraordinary circumstances or abuse of discretionwarranting any modification (see Peoplev Appleby, 79 AD3d 1533, 1534 [2010]; People v Lerario, 50 AD3d 1396, 1396-1397 [2008], lvdenied 10 NY3d 961 [2008]).
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant did not request anexpanded charge on intent (see CJI2d[NY] Culpable Mental States—Intent).