| People v Heier |
| 2011 NY Slip Op 09218 [90 AD3d 1336] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jonathan W.Heier, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Rita M. Basile of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County (Cawley, J.),rendered November 12, 2008, upon a verdict convicting defendant of the crimes of assault in thesecond degree and resisting arrest.
Prior to attending a banquet with his wife, defendant took at least one prescribed medicationand drank two large glasses of orange juice mixed with vodka. At the banquet, during which hedrank at least eight or nine large mixed drinks, defendant was involved in a fight and was forcedto leave. While being driven home, defendant hit his wife and pulled her hair. Upon arrivinghome, defendant scuffled with the friend who drove them home, then followed his wife into thehouse and began attacking her. He punched her, knocked her down and kicked her in the facewith his steel-toed boots. She ran outside, where he punched and kicked her again, then she ranback inside and he continued beating her. The police showed up, at which point he stoppedhitting her. When the police asked defendant to put his hands behind his back and go outside, hegrabbed the freezer door handle and refused to let go. After the police knocked him down, hecontinued to struggle until they finally secured him with two pairs of handcuffs.
Defendant was charged by indictment with assault in the first degree, assault in the seconddegree and resisting arrest. A jury found him guilty of assault in the second degree and resistingarrest. County Court sentenced him to an aggregate term of two years in prison and [*2]three years of postrelease supervision and ordered him to pay$3,084.50 in restitution. Defendant appeals.
The verdict was based upon legally sufficient evidence and was not against the weight of theevidence. For assault in the second degree, the People had to prove that defendant "recklesslycause[d] serious physical injury to another person by means of a . . . dangerousinstrument" (Penal Law § 120.05 [4]). The parties stipulated that defendant's wife sufferedserious physical injuries and that steel-toed boots are a dangerous instrument. The wife andbabysitter testified that defendant repeatedly punched and kicked his wife, including kicking herin the mouth with his steel-toed boots, knocking out some of her teeth. The only issue wasdefendant's mental state at the time. Similarly, two State Troopers testified that, when told he wasunder arrest, defendant refused their orders to put his hands behind his back, grabbed the freezer,would not let go, and struggled with them after they knocked him to the ground. Again, the onlyelement truly at issue on the count of resisting arrest was defendant's mental state. That countrequired intent, while assault in the second degree required recklessness.
A reckless mental state exists concerning a result or circumstance where a defendant "isaware of and consciously disregards a substantial and unjustifiable risk that such result will occuror that such circumstance exists" (Penal Law § 15.05 [3]). Disregard of the risk mustconstitute "a gross deviation from the standard of conduct that a reasonable person wouldobserve in the situation. A person who creates such a risk but is unaware thereof solely by reasonof voluntary intoxication also acts recklessly with respect thereto" (Penal Law § 15.05 [3]).
Defendant contends that he could not have acted intentionally or recklessly because he wasso intoxicated, as a result of the alcohol and medication, that he does not recall any of the eventssurrounding the charges here. He presented a toxicologist who testified that a person who takesCymbalta with alcohol can have delusions or amnesia because each of these substances enhancethe effects of the other. Defendant testified that he took a Cymbalta, as well as a pain pill, beforethe banquet. His wife testified that defendant only took a pain pill that night, and that he had nottaken Cymbalta for about six months. Five months before this incident, defendant stopped seeingthe doctor who prescribed him Cymbalta. The toxicologist also acknowledged that themanufacturer of Cymbalta published studies saying that delusions were not caused by using thatmedication with alcohol, although he dismissed those studies based on their source. Thetoxicologist had not performed his own studies, and testified only from the medical literature andbased on anecdotal reports. Based on the testimony, the jury could have believed that defendantdid not take Cymbalta that night, or that Cymbalta did not cause any reaction greater than ifdefendant had merely consumed the large amounts of alcohol attested to by numerous witnesses.
Defendant created a risk of harm to his wife when he punched and kicked her. Because hewas unaware of the risk solely due to his voluntary intoxication, he acted recklessly when hecaused her serious physical injury (see Penal Law § 15.05 [3]). Defendant couldhave intended to resist arrest even though he has no memory of the incident. The babysittertestified that defendant continued hitting his wife despite being asked to stop, but he stoppedbeating her when he saw the headlights of the police car and the babysitter mentioned that thepolice had arrived. The Troopers testified that defendant was combative and intoxicated, but heseemed to understand their directions. He informed them that he would not put his hands behindhis back because they would not fit and his back hurt. He also stated that he would not let go ofthe freezer. After he was handcuffed, defendant—who was a dog breeder—asked thebabysitter [*3]about taking care of his dogs. At the police station,defendant adequately responded to pedigree questions. From this evidence, the jury couldreasonably have found that, despite his intoxication, defendant was aware that the officers werearresting him and he intentionally attempted to prevent them from effectuating his arrest. Givingdeference to the jury's credibility determinations, we agree with its findings regarding defendant'smental state for each count (see People vYoung, 74 AD3d 1471, 1472 [2010], lv denied 15 NY3d 811 [2010]).Accordingly, the verdict was not against the weight of the evidence.
County Court did not err in admitting photographs of the victim's injuries. Despite defendanthaving stipulated that his wife suffered serious physical injuries, the photographs wereadmissible to show defendant's intent to seriously injure her (see People v Stevens, 76NY2d 833, 836 [1990]; People vManos, 73 AD3d 1333, 1339 [2010], lv denied 15 NY3d 807 [2010]; Peoplev Mastropietro, 232 AD2d 725, 726 [1996], lv denied 89 NY2d 1038 [1997]; see also People v White, 79 AD3d1460, 1463 [2010], lv denied 17 NY3d 791, 803 [2011]). The court properlybalanced the prejudice to defendant against the probative value, permitting the People tointroduce less than half of the pictures they sought to admit. Thus, the court did not abuse itsdiscretion in this evidentiary ruling (see People v Stevens, 76 NY2d at 835; People vMastropietro, 232 AD2d at 726).
Defendant did not preserve his arguments concerning the jury instructions, as he did notobject to the aspects of the charge now at issue (see People v Thomas, 50 NY2d 467, 473[1980]). Counsel was not ineffective for failing to object, as the charge accurately reflected thelaw and did not improperly shift the burden (see People v Getch, 50 NY2d 456, 465[1980]).
Defendant's argument concerning restitution is unpreserved for review because he did notrequest a hearing or otherwise contest the amount awarded at sentencing (see People v Planty, 85 AD3d1317, 1318 [2011], lv denied 17 NY3d 820 [2011]; People v Dickson, 55 AD3d 1137,1138 [2008]).
Peters, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.