People v. Madore

• Decision Date: 23 December 2016
• Parties: The PEOPLE of the State of New York, Respondent, v. Marc MADORE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1440
46 N.Y.S.3d 300
2016 N.Y. Slip Op. 08622

The PEOPLE of the State of New York, Respondent,
v.
Marc MADORE, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 23, 2016.

46 N.Y.S.3d 301

Patricia M. McGrath, Lockport, for Defendant–Appellant.

Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CENTRA, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

145 A.D.3d 1440

Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[1] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ). We reject defendant's contention that his conviction is not supported by legally sufficient evidence because the evidence of his intoxication negated the element of intent for the crimes of which he was convicted. Although there was evidence at trial that defendant consumed a significant quantity of alcohol prior to the incident, "[a]n intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted to negate the element of intent" (People v. Gonzalez, 6 A.D.3d 457, 457, 773 N.Y.S.2d 889, lv. denied 2 N.Y.3d 799, 781 N.Y.S.2d 299, 814 N.E.2d 471 ; see People v. LaGuerre, 29 A.D.3d 820, 822, 815 N.Y.S.2d 211, lv. denied

46 N.Y.S.3d 302

7 N.Y.3d 814, 822 N.Y.S.2d 489, 855 N.E.2d 805 ; People v. Jackson, 269 A.D.2d 867, 867, 703 N.Y.S.2d 804, lv. denied 95 N.Y.2d 798, 711 N.Y.S.2d 166, 733 N.E.2d 238 ). Here, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we conclude that the evidence is legally sufficient to establish that defendant had the requisite intent (see LaGuerre, 29 A.D.3d at 822, 815 N.Y.S.2d 211 ).

145 A.D.3d 1441

We reject defendant's further contention that the verdict is against the weight of the evidence because the People failed to disprove his defense of justification beyond a reasonable doubt. The justification defense "does not apply to a crime based on the possession of a weapon" (People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11 ), and thus it is 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 initial aggressor, the People established that the victim merely challenged defendant to a "fist fight" (see People v. Goley, 113 A.D.3d 1083, 1083–1084, 977 N.Y.S.2d 847 ) 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 (see People v. Martinez, 149 A.D.2d 438, 438, 539 N.Y.S.2d 781, lv. denied 74 N.Y.2d 814, 546 N.Y.S.2d 572, 545 N.E.2d 886 ). The People also established that the victim neither threatened defendant with the knife nor brandished the knife during the altercation (see People v. Haynes, 133 A.D.3d 1238, 1239, 20 N.Y.S.3d 275, lv. denied 27 N.Y.3d 998, 38 N.Y.S.3d 108, 59 N.E.3d 1220 ). Thus, viewing the evidence in light of the elements of the crime of assault in the first degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the jury's rejection of the justification defense is not against the weight of the evidence (see Haynes, 133 A.D.3d at 1239, 20 N.Y.S.3d 275 ; Goley, 113 A.D.3d at 1084, 977 N.Y.S.2d 847 ; see generally People v. Comfort, 113 A.D.2d 420, 425, 496 N.Y.S.2d 857, lv. denied 67 N.Y.2d 760, 500 N.Y.S.2d 1031, 491 N.E.2d 288 ).

Defendant contends that his conviction of assault in the first degree must be reversed because it was based upon the same evidence offered in support of the charge of attempted murder in the second degree, but the jury returned a verdict of not guilty on that charge. We note that, although defendant frames this as a challenge to the legal sufficiency 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 object to the alleged repugnancy of the verdict before the jury was discharged" (People v. Spears, 125 A.D.3d 1401, 1402, 3 N.Y.S.3d 535, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ). 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 conclusive as to a necessary element of the other crime, as charged, for which the guilty verdict was rendered" (People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 ; see People v. McLaurin, 50 A.D.3d 1515, 1516, 856 N.Y.S.2d 773 ). Contrary to defendant's contention, "the verdict acquitting ... defendant of attempted murder [in the second degree] is not conclusive as to the necessary elements" of assault in the first degree, of which he was

145 A.D.3d 1442

convicted...