| People v Wolff |
| 2013 NY Slip Op 00866 [103 AD3d 1264] |
| February 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Shane M. Wolff, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.),rendered June 7, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal contempt in the first degree and harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [v]) and harassmentin the second degree (§ 240.26 [1]), defendant contends that County Court erred inrefusing to charge criminal contempt in the second degree (§ 215.50 [3]) as alesser included offense of criminal contempt in the first degree. We reject thatcontention. "There is no reasonable view of the evidence that would support a findingthat defendant 'committed the lesser offense but not the greater' " (People vSullivan, 284 AD2d 917, 918 [2001], lv denied 96 NY2d 942 [2001], lvdenied upon reconsideration 97 NY2d 658 [2001], quoting People v Glover,57 NY2d 61, 63 [1982]; seePeople v Wilson, 55 AD3d 1273, 1274 [2008], lv denied 11 NY3d 931[2009]).
Defendant failed to preserve for our review his contention that he was deprived of afair trial by the prosecutor's alleged misconduct during cross-examination and onsummation. Defendant either failed to object to the allegedly improper conduct (seePeople v Kidd, 265 AD2d 859, 859 [1999], lv denied 94 NY2d 824 [1999])or he "failed to explain the basis for his general objection[s]" (People v Bratcher,291 AD2d 878, 879 [2002], lv denied 98 NY2d 673 [2002]; see People vTonge, 93 NY2d 838, 839-840 [1999]; People v Antonio, 255 AD2d 449,450 [1998], lv denied 93 NY2d 850 [1999]). We decline to exercise our power toreview defendant's contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We reject defendant's further contention that the court erred in allowing the People topresent evidence of two of his prior acts of domestic violence against the victim. Theevidence was properly admitted because it was relevant to provide backgroundinformation concerning the context and history of defendant's relationship with thevictim (see People v Perez,67 AD3d 1324, 1325-1326 [2009], lv denied 13 NY3d 941 [2010]), and itwas relevant to the issue whether defendant intended to harass and annoy her (see People v Crump, 77 AD3d1335, 1336 [2010], lv denied 16 NY3d [*2]857 [2011]). Furthermore, its probative value exceeded itspotential for prejudice (see id.; People v Kelly, 71 AD3d 1520, 1521 [2010], lv denied15 NY3d 775 [2010]; see generally People v Molineux, 168 NY 264,293-294 [1901]).
Defendant next contends that the court erred in failing to discharge a sworn juror. Tothe extent that defendant's contention is preserved for our review (see CPL470.05 [2]), it is without merit. On the record before us, it cannot be said that the courtshould have been "convinced" (People v Buford, 69 NY2d 290, 299 [1987]),based upon the responses of the juror upon questioning by the court and both theprosecutor and defense counsel, that the juror's family circumstances rendered him"unavailable for continued service" or that he was "grossly unqualified to serve in thecase" because of his passing familiarity with defendant (CPL 270.35 [1]; see People vTelehany, 302 AD2d 927, 928 [2003]).
We agree with defendant, however, that the court erred in refusing to give anintoxication charge. "An intoxication charge is warranted if, viewing the evidence in thelight most favorable to the defendant, 'there is sufficient evidence of intoxication in therecord for a reasonable person to entertain a doubt as to the element of intent on thatbasis' " (People v Sirico, 17NY3d 744, 745 [2011], quoting People v Perry, 61 NY2d 849, 850 [1984];see People v Gaines, 83 NY2d 925, 927 [1994]; see also People v Tribunella,49 AD3d 1184, 1185 [2008]). "A defendant may establish entitlement to such acharge 'if the record contains evidence of the recent use of intoxicants of such nature orquantity to support the inference that their ingestion was sufficient to affect defendant'sability to form the necessary criminal intent' " (Sirico, 17 NY3d at 745, quotingPeople v Rodriguez, 76 NY2d 918, 920 [1990]). "Although a 'relatively lowthreshold' exists to demonstrate entitlement to an intoxication charge, bare assertions by adefendant concerning his intoxication, standing alone, are insufficient" (id. at745).
Here, the victim testified that, several hours before defendant violated the order ofprotection by harassing her, she and defendant consumed heroin and marihuana anddefendant consumed alcohol, and that she was still "high" when the incident occurred.Defendant testified that he and the victim had used heroin and marihuana on the night inquestion, and that he drank approximately four 12-ounce cans of beer. That evidence,viewed in the light most favorable to defendant, was sufficient to meet the relatively lowthreshold for entitlement to an intoxication charge (see generally Sirico, 17NY3d at 745-746).
We also agree with defendant that the court erred in refusing to give a voluntarinesscharge with respect to statements he made to the police. The court denied defendant'srequest on the sole ground that it had ruled at a pretrial Huntley hearing that thestatements were admissible at trial. That was not a proper ground for denying defendant'srequest at trial for the voluntariness charge. Indeed, CPL 710.70 (3) expressly providesthat, even where a court denies a defendant's pretrial motion to suppress statements, thatdoes not preclude the defendant "from attempting to establish at a trial that evidenceintroduced by the people of a [pretrial] statement made by him [or her] should bedisregarded by the jury . . . on the ground that such statement wasinvoluntarily made within the meaning of [CPL] section 60.45." The statute furtherprovides that, "[i]n the case of a jury trial, the court must submit [the issue ofvoluntariness] to the jury under instructions to disregard such evidence upon a findingthat the statement was involuntarily made" (see People v Graham, 55 NY2d 144,147 [1982]). Although there may have been another ground upon which the court couldhave refused to give the voluntariness charge, our review is limited to the ground reliedupon by the trial court (seePeople v Concepcion, 17 NY3d 192, 194-195 [2011]; People vLaFontaine, 92 NY2d 470, 473-474 [1998], rearg denied 93 NY2d 849[1999]).
We further conclude, however, that the court's failure to charge the jury onintoxication and voluntariness is harmless error. The proof of defendant's guilt isoverwhelming, "and there [*3]is no significantprobability that defendant would have been acquitted but for the error" (People v Thomas, 96 AD3d1670, 1672 [2012], lv denied 19 NY3d 1002 [2012]; see People vGreene, 186 AD2d 147 [1992], lv denied 81 NY2d 840 [1993]; cf.People v Ressler, 302 AD2d 921 [2003]; see generally People v Crimmins,36 NY2d 230, 241-242 [1975]).
Finally, given that defendant has a lengthy criminal record and engaged in priorinstances of domestic violence, we perceive no basis to modify his sentence as a matterof discretion in the interest of justice (see CPL 470.15 [6] [b]).Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.