| People v Madore |
| 2016 NY Slip Op 08622 [145 AD3d 1440] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarc Madore, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of counsel),for respondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedJuly 17, 2014. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the first degree (Penal Law § 120.10 [1]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]). We rejectdefendant's contention that his conviction is not supported by legally sufficient evidencebecause the evidence of his intoxication negated the element of intent for the crimes ofwhich he was convicted. Although there was evidence at trial that defendant consumed asignificant quantity of alcohol prior to the incident, "[a]n intoxicated person can form therequisite criminal intent to commit a crime, and it is for the trier of fact to decide if theextent of the intoxication acted to negate the element of intent" (People v Gonzalez, 6 AD3d457, 457 [2004], lv denied 2 NY3d 799 [2004]; see People v LaGuerre, 29AD3d 820, 822 [2006], lv denied 7 NY3d 814 [2006]; People vJackson, 269 AD2d 867, 867 [2000], lv denied 95 NY2d 798 [2000]). Here,viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legallysufficient to establish that defendant had the requisite intent (see LaGuerre, 29AD3d at 822).
We reject defendant's further contention that the verdict is against the weight of theevidence because the People failed to disprove his defense of justification beyond areasonable doubt. The justification defense "does not apply to a crime based on thepossession of a weapon" (People v Pons, 68 NY2d 264, 265 [1986]), and thus itis not applicable to the charge of criminal possession of a weapon in the third degree.With respect to the crime of assault in the first degree, although the victim was the initialaggressor, the People established that the victim merely challenged defendant to a "fistfight" (see People v Goley,113 AD3d 1083, 1083-1084 [2014]) and, as the two men began to trade blows,defendant took a knife from the victim's person and used it to stab him repeatedly (seePeople v Martinez, 149 AD2d 438, 438 [1989], lv denied 74 NY2d 814[1989]). The People also established that the victim neither threatened defendant with theknife nor brandished the knife during the altercation (see People v Haynes, 133 AD3d 1238, 1239 [2015], lvdenied 27 NY3d 998 [2016]). Thus, viewing the evidence in light of the elements ofthe crime of assault in the first degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the jury's rejection of the justificationdefense is not against the weight of the evidence (see Haynes, 133 AD3d at 1239;Goley, 113 AD3d at 1084; see generally People v Comfort, 113 AD2d420, 425 [1985], lv denied 67 NY2d 760 [1986]).
Defendant contends that his conviction of assault in the first degree must be reversedbecause it was based upon the same evidence offered in support of the charge ofattempted murder in the second degree, but the jury returned a verdict of not guilty onthat charge. We note that, although defendant frames this as a challenge to the legalsufficiency of the evidence, he is in fact contending that the verdict is repugnant.Defendant failed to preserve that contention for our review because he "failed to objectto the alleged repugnancy of the verdict before the jury was discharged" (People v Spears, 125 AD3d1401, 1402 [2015], lv denied 25 NY3d 1172 [2015]). In any event,defendant's contention is without merit. "[A] conviction will be reversed [as repugnant]only in those instances where acquittal on one crime as charged to the jury is conclusiveas to a necessary element of the other crime, as charged, for which the guilty verdict wasrendered" (People v Tucker, 55 NY2d 1, 7 [1981], rearg denied 55 NY2d1039 [1982]; see People vMcLaurin, 50 AD3d 1515, 1516 [2008]). Contrary to defendant's contention,"the verdict acquitting . . . defendant of attempted murder [in the seconddegree] is not conclusive as to the necessary elements" of assault in the first degree, ofwhich he was convicted (People v Brown, 158 AD2d 528, 529 [1990], lvdenied 76 NY2d 731 [1990]).
We reject defendant's further contention that the conviction of assault in the firstdegree is not supported by legally sufficient evidence and the verdict is against theweight of the evidence with respect thereto because the People failed to establish that heintended to cause serious physical injury (see Penal Law § 120.10[1]). It is well established that criminal intent may be inferred from the totality of thecircumstances (see People v Mike, 283 AD2d 989, 989 [2001], lv denied96 NY2d 904 [2001]). Intent may also be inferred from the natural and probableconsequences of defendant's conduct (see People v Roman, 13 AD3d 1115, 1115 [2004], lvdenied 4 NY3d 802 [2005]). Here, the People presented evidence establishing thatdefendant took a knife from the victim and used it to stab the victim multiple times,causing "life-threatening" injuries. We therefore conclude that the evidence is legallysufficient to sustain the conviction of assault in the first degree, inasmuch as there is a"valid line of reasoning and permissible inferences which could lead a rational person tothe conclusion reached by the jury on the basis of the evidence at trial" (People vBleakley, 69 NY2d 490, 495 [1987]). Moreover, although defendant testified that thevictim initially attacked him with the knife and that the victim had been injured by an"inadvertent stabbing" committed in self-defense, the verdict is not against the weight ofthe evidence because the jury was entitled to reject defendant's testimony and credit thetestimony of the victim and an eyewitness that the victim did not use a knife againstdefendant (see Goley, 113 AD3d at 1084; People v Thomas, 105 AD3d 1068, 1070-1071 [2013],lv denied 21 NY3d 1010 [2013]; see generally Bleakley, 69 NY2d at495).
With respect to the conviction of criminal possession of a weapon in the third degree,we reject defendant's contention that the conviction is based upon legally insufficientevidence and is against the weight of the evidence because the People failed to disprovehis defense of temporary lawful possession of the weapon. "[A] person may be found tohave had temporary and lawful possession of a weapon if he or she took the weaponfrom an assailant in the course of a fight" (People v Hicks, 110 AD3d 1488, 1488 [2013], lvdenied 22 NY3d 1156 [2014]), but in such circumstances there must be "factstending to establish that, once possession has been obtained, the weapon had not beenused in a dangerous manner" (People v Williams, 50 NY2d 1043, 1045 [1980]).Here, the evidence establishing that defendant possessed the knife for the purpose ofinflicting serious physical injury to the victim and that he did not immediately turn overthe weapon to the police is "utterly at odds with [defendant's] claim of innocentpossession . . . temporarily and incidentally [resulting] from. . . disarming a wrongful possessor" (People v Snyder, 73 NY2d900, 902 [1989] [internal quotation marks omitted]; see People v Robinson, 63 AD3d 1634, 1635 [2009], lvdenied 13 NY3d 799 [2009]). We therefore conclude that the evidence is legallysufficient to support the conviction of criminal possession of a weapon in the thirddegree (see generally Bleakley, 69 NY2d at 495), and that, viewing the evidencein light of the elements of the crimes as charged to the jury (see Danielson, 9NY3d at 349), the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495). Present—Whalen, P.J., Centra, Carni, Curran andTroutman, JJ.