| People v Audi |
| 2011 NY Slip Op 07312 [88 AD3d 1070] |
| October 20, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jeffrey Audi,Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Michael R. Stern of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of Washington County(McKeighan, J.), rendered October 21, 2010, upon a verdict convicting defendant of the crimesof attempted assault in the second degree and criminal contempt in the first degree, and (2) froma judgment of said court, rendered October 22, 2010, convicting defendant upon his plea of guiltyof the crime of driving while intoxicated.
On the evening of June 18, 2010 in the Town of Greenwich, Washington County, defendantdrove his vehicle in an intoxicated condition, arriving unannounced at the home of his formergirlfriend, Sally Ducharme. She had ended their relationship earlier that week and returned all ofhis belongings, directing that he not return to her home without permission. Upon seeing her inher garden with a friend, David Lewis, who was a stranger to defendant, defendant charged atthem and attacked Lewis without provocation. Defendant repeatedly punched Lewis in the headand shoulder area, kicked him in the ribs and started to choke him. Lewis managed to breakdefendant's chokehold and subdue him on the ground, while defendant continued to swing andthrash out, until police, summoned by Ducharme, arrived and handcuffed defendant. Lewis wastransported by ambulance to a nearby hospital emergency room for medical treatment. Hourslater, defendant was arraigned in Greenwich Town Court, which issued a no contact orcommunication order of protection in favor of Lewis and Ducharme. Despite being explicitly[*2]advised by the court that a telephone call to Ducharme wouldviolate the order, defendant almost immediately violated that order by incessantly callingDucharme at home that evening more than 20 times.
After a jury trial, defendant was convicted of attempted assault in the second degree andcriminal contempt in the first degree; he was later sentenced, as a second felony offender, to aprison term of 2 to 4 years on the assault conviction, to be served consecutively to a1½-to-3-year term on the contempt conviction. Thereafter, defendant separately entered aguilty plea to felony driving while intoxicated (hereinafter DWI) for driving to Ducharme'sresidence while intoxicated, and he received a concurrent prison term of 1 to 3 years, waiving hisright to appeal. Defendant now appeals from both judgments, which were consolidated forappeal.[FN*]
Initially, we reject defendant's challenges to the legal sufficiency and weight of the evidence.Attempted assault in the second degree requires the People to prove that defendant, "with intentto cause serious physical injury to another person" (Penal Law § 120.05 [1]; see People v Casey, 61 AD3d1011, 1012-1013 [2009], lv denied 12 NY3d 913 [2009]), engaged in conducttending to cause such injury (see Penal Law § 110.00; People v West, 271AD2d 806, 808 [2000], lv denied 95 NY2d 893 [2000]). Serious physical injury is injurywhich "creates a substantial risk of death, or which causes death or serious and protracteddisfigurement, protracted impairment of health or protracted loss or impairment of the functionof any bodily organ" (Penal Law § 10.00 [10]).
Viewing the evidence in a light most favorable to the People (see People v Contes,60 NY2d 620, 621 [1983]), and given the unrefuted testimony thatdefendant—unprovoked—repeatedly punched Lewis in the head and kicked him inthe ribs and choked him, causing Lewis "extreme pain" and difficulty breathing, we find thatdefendant's intent to cause serious physical injury to Lewis was readily inferable (see People v Booker, 53 AD3d697, 703 [2008], lvs denied 11 NY3d 853, 856 [2008]; People v Foster, 52 AD3d 957,958 [2008], lv denied 11 NY3d 788 [2008]; People v Bruno, 47 AD3d 1064, 1066 [2008], lv denied 10NY3d 809 [2008]; People v West, 271 AD2d at 808). The fact that Lewis, a sizeable manwith considerable martial arts experience, was able to subdue defendant—who continuedto earnestly attempt to further harm Lewis—did not undermine the compelling inferencethat defendant intended to cause him serious physical injury and engaged in conduct attemptingto achieve that objective. This attempt crime did not require defendant's actual success in causingsuch serious physical injury (see Peoplev Koufomichalis, 2 AD3d 987, 988 [2003], lv denied 2 NY3d 742 [2004]), onlythat he intended such injury and engaged in conduct directed at accomplishing that objective (see People v Naradzay, 11 NY3d460, 466 [2008]; People v Mahboubian, 74 NY2d 174, 189 [1989]).
The medical testimony established that defendant's assault resulted in decreased oxygen toLewis's lungs and concomitant difficulty breathing, a bruised or possibly fractured rib and anincreased likelihood of pneumonia. But for Lewis's ability to stop the assault, serious physicalinjury could surely have resulted. In our view, the jury's verdict of attempted assault wassupported by legally sufficient evidence (see People v Bleakley, 69 NY2d 490, 495[1987]; People v West, supra).[*3]
Likewise, viewing the evidence most favorably to thePeople, we find that they proved beyond a reasonable doubt that defendant committed criminalcontempt in the first degree by repeatedly making telephone calls to Ducharme's residence incontravention of a valid order of protection made for her benefit, of which defendant had actualknowledge, with the intent to harass, annoy, threaten or alarm her, and with no legitimatepurpose (see Penal Law § 215.51 [b] [iv]; People v Soler, 52 AD3d 938, 939-940 [2008], lv denied 11NY3d 741 [2008]; see also People v Contes, supra). The testimony of the Town Justicewho arraigned defendant, combined with that of the Sheriff's Deputy who arrested him after theassault, established that the order was served on defendant in open court, he signed it and thecourt unequivocally orally advised him regarding its terms, including that it applied to andprotected Ducharme and prohibited his telephoning her. The fact that Ducharme's name was,inadvertently, not recorded on the computer generated order provided to defendant did notpreclude defendant's criminal contempt conviction, as "[n]otice of the contents of, and thereforeof the conduct prohibited by, an order of protection may be given either orally or in writing"(People v Clark, 95 NY2d 773, 775 [2000], affg 262 AD2d 711 [1999]; seePeople v McCowan, 85 NY2d 985, 987 [1995]). The in-court advisements were more thanadequate.
Further, while a different verdict would arguably not have been unreasonable, upon ourindependent review of the record in a neutral light, and giving deference to the jury's opportunityto observe the witnesses, we find that the jury gave the evidence its proper weight and wasjustified in finding defendant guilty on both counts (see People v Bleakley, 69 NY2d at495; People v Kruppenbacher, 81AD3d 1169, 1174-1175 [2011], lv denied 17 NY3d 797 [2011]).
Defendant lastly contends that County Court's imposition of consecutive prison sentenceswas harsh and excessive, in view of the fact that he has no violent criminal history and theconvictions stem from his ongoing alcoholism and distress over the loss of an importantrelationship. The court was aware of the foregoing. While addiction may, in the appropriate case,be a mitigating factor, this incident resulted in defendant's fifth drunk driving arrest and hissecond felony DWI conviction, and occurred despite the fact that, over the years, he has beenafforded multiple substance abuse counseling opportunities as well as drug court treatment andsentencing leniency with no prison time. We cannot conclude that the sentence was harsh andexcessive (see People v Dolan, 51AD3d 1337, 1341 [2008], lv denied 12 NY3d 757 [2009]).
The consecutive sentences were authorized and justified given that defendant's crimes weredistinct and arose from separate acts (see Penal Law § 70.25 [2]; People v Cortese, 79 AD3d 1281,1285 [2010], lv denied 16 NY3d 857 [2011]). Notably, defendant was not so intoxicatedas to be unable to form the requisite intent (see People v Becker, 288 AD2d 766, 767[2001], lv denied 97 NY2d 751 [2002]) and, after the assault, had ample opportunity toreflect on the consequences of his violent actions and to decide not to engage in further criminalbehavior but, instead, embarked on a separate criminal course.
Peters, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgments areaffirmed.
Footnote *: As defendant raises no issue inhis brief concerning the judgment entered upon his plea of guilty to DWI, that appeal is deemedabandoned and the judgment is affirmed.