People v. Rodriguez
| Decision Date | 20 November 1989 |
| Citation | 547 N.Y.S.2d 677,155 A.D.2d 627 |
| Parties | The PEOPLE, etc., Respondent, v. Jose RODRIGUEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Joel Atlas, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Jodi L. Mandell, Carol Teague Schwartzkopf and Karen A. Murphy, of counsel), for respondent.
Before MOLLEN, P.J., and BROWN, RUBIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County (Lagana, J.), rendered June 4, 1987, convicting him of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant argues that the court erred in denying his request for an intoxication charge, since there was evidence adduced at trial of drug usage by the defendant just prior to commission of the crimes charged. We disagree.
Reviewing the evidence in the light most favorable to the defendant, as we must when there is an issue as to whether a particular theory of defense should have been charged (People v. Farnsworth, 65 N.Y.2d 734, 492 N.Y.S.2d 12, 481 N.E.2d 552), we find that although the defendant was able to establish that he had used drugs shortly before the commission of the crimes charged, there is no evidence that his mental capacity was in any way diminished by his drug use. His statements to the police on the date of the murder, and again 10 days later, indicate he had a clear recollection of the events preceding and following the murder as well as the particulars of the shooting itself. "Since the record fails to disclose any evidence of intoxication from which a reasonable person could entertain a doubt as to the element of intent, the court properly declined to give an intoxication charge" (People v. Franco, 144 A.D.2d 581, 534 N.Y.S.2d 224; People v. Cintron, 74 A.D.2d 457, 428 N.Y.S.2d 267).
The defendant also asserts that certain comments made by the prosecutor during summation improperly shifted the burden of proof to him. No objection was raised, however, as to one of the comments and, accordingly, no issue has been preserved for appellate review as to that statement (People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584, 407 N.E.2d 430). As to the remaining comments, they were made in response to defense counsel's...
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People v. Rodriguez
...diminished by his drug use and thus no reasonable person could entertain a doubt as to the element of intent (see, People v. Rodriguez, 155 A.D.2d 627, 547 N.Y.S.2d 677; see also, People v. Rios, 150 A.D.2d 620, 541 N.Y.S.2d 489; People v. Franco, 144 A.D.2d 581, 534 N.Y.S.2d 224). We agree......
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People v. Velasquez
...36 N.Y.2d 230, 241-241, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Fenner, 158 A.D.2d 538, 539, 551 N.Y.S.2d 305; People v. Rodriguez, 155 A.D.2d 627, 547 N.Y.S.2d 677, affd. 76 N.Y.2d 918, 563 N.Y.S.2d 48, 564 N.E.2d 658). Finally, there is no basis for disturbing the defendant's sentence......
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People v. Brown
...544; People v. Garcia, 271 A.D.2d 695, 708 N.Y.S.2d 300; People v. Hernandez, 161 A.D.2d 664, 555 N.Y.S.2d 815; People v. Rodriguez, 155 A.D.2d 627, 547 N.Y.S.2d 677, affd. 76 N.Y.2d 918, 563 N.Y.S.2d 48, 564 N.E.2d 658). DILLON, J.P., MILLER, DICKERSON and CHAMBERS, JJ., ...
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