| People v Principio |
| 2013 NY Slip Op 04494 [107 AD3d 1572] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RalphA. Principio, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered December 22, 2011. The judgment convicted defendant, upon a jury verdict, ofmenacing a police officer or peace officer, menacing in the first degree and criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a juryverdict, of menacing a police officer or peace officer (Penal Law § 120.18),menacing in the first degree (§ 120.13), and criminal possession of a weapon in thethird degree (§ 265.02 [1]). Defendant failed to preserve for our review hiscontention that he was deprived of a fair trial by certain remarks made by the prosecutorduring his summation (seePeople v Figgins, 72 AD3d 1599, 1600 [2010], lv denied 15 NY3d 893[2010]; People v Lawson,40 AD3d 657, 658 [2007], lv denied 9 NY3d 877 [2007]). In any event, anyprejudice arising from the prosecutor's single misstatement regarding defendant'stestimony was dispelled when that testimony was read back to the jury during the courseof its deliberations (see generally People v Mills, 159 AD2d 437, 437 [1990],lv denied 76 NY2d 739 [1990]). Moreover, County Court expressly instructedthe jurors prior to summations that they alone were the finders of fact, that if one of theattorneys asserted a fact not in evidence, it must be disregarded, and that it was the jurors'own recollection of the evidence that controlled (see People v Lawson, 40 AD3d 657, 658 [2007], lvdenied 9 NY3d 877 [2007]; People v Gibson, 18 AD3d 335, 335 [2005], lvdenied 5 NY3d 789 [2005]).
Contrary to defendant's further contention, viewing the evidence in light of theelements of the crimes of menacing a police officer or peace officer and menacing in thefirst degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), theverdict with regard to those crimes is not against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). "Although there wasevidence at trial that defendant consumed a significant quantity of alcohol on the night ofthe incident, [a]n intoxicated person can form the requisite criminal intent to commit acrime, and it is for the trier of fact to decide if the extent of the intoxication acted tonegate the element of intent" (People v Felice, 45 AD3d 1442, 1443 [2007], lvdenied 10 NY3d 764 [2008] [internal quotation marks omitted]; see People v Mateo, 70 AD3d1331, 1331 [2010], lv denied 15 NY3d 753 [2010]). Affording deference tothe jury's credibility determinations here, "we cannot say [*2]that the jury improperly weighed the evidence in decidingin the People's favor the extent of defendant's intoxication" (People v Scott, 47 AD3d1016, 1019 [2008], lv denied 10 NY3d 870 [2008]). Nor was it improper forthe jury to reject defendant's contention that his head injury prevented him from formingthe requisite intent to commit the crimes. Further, the weight of the evidence supports thejury's conclusion that defendant knew or reasonably should have known that the victimwas a police officer (see Penal Law § 120.18).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P.,Fahey, Carni and Sconiers, JJ.