People v. Rolfe

• Decision Date: 14 April 2011
• Citation: 83 A.D.3d 1217,2011 N.Y. Slip Op. 02972,920 N.Y.S.2d 853
• Parties: The PEOPLE of the State of New York, Respondent,v.James ROLFE, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1217

920 N.Y.S.2d 853

2011 N.Y. Slip Op. 02972

The PEOPLE of the State of New York, Respondent,

v.James ROLFE, Appellant.

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

April 14, 2011.

Sandra M. Colatosti, Albany, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: SPAIN, J.P., STEIN, McCARTHY, GARRY and EGAN JR., JJ.GARRY, J.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 20, 2009, upon a verdict convicting defendant of the crimes of assault in the second degree and criminal mischief in the fourth degree.

In December 2008, defendant left a party after consuming a large amount of alcohol and becoming intoxicated. When he and several others arrived at his girlfriend's apartment, they discovered that they had no keys. Apparently unaware that his girlfriend had gained access through a nearby window, defendant used his elbow to break glass in a door, lacerating his arms. Emergency personnel were called to the scene to provide medical assistance. Defendant became combative, shoving an emergency medical technician, punching a police officer several times and knocking him to the floor, and twice holding his girlfriend off the floor by her throat. After being handcuffed and subdued, defendant was hospitalized for treatment of his injuries.

Defendant was subsequently convicted by jury verdict of assault in the second degree and criminal mischief in the fourth degree, and acquitted of, among other crimes, obstructing governmental administration in the second degree. He was sentenced as a second felony offender to an aggregate prison term of six years and five years of postrelease supervision. Defendant appeals.

Initially, defendant contends that the verdict was against the weight of the evidence because the People failed to prove that he acted with the requisite intent to support his convictions. Based on evidence that defendant was extremely intoxicated, lost a significant amount of blood, and appeared confused and incoherent at times during the encounter, a different verdict would not have been unreasonable ( see Penal Law § 15.25). Thus, this Court must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal quotation marks and citation omitted]; accord People v. Davis, 72 A.D.3d 1274, 1276, 899 N.Y.S.2d 403 [2010] ). “ ‘Whether an individual's level of intoxication negates the element of intent to commit a crime lies within the domain of the jury as the trier of fact’ ” ( People v. Hazen, 20 A.D.3d 586, 588, 799 N.Y.S.2d 596 [2005], lv. denied 5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158 [2005], quoting People v. Keller, 246 A.D.2d 828, 829, 667 N.Y.S.2d 814 [1998], lv. denied 91 N.Y.2d 1009, 676 N.Y.S.2d 137, 698 N.E.2d 966 [1998] ). The police officers who arrived in response to the call were in uniform. During his physical altercation with them, defendant revealed awareness that he was fighting with police officers by calling them “f* * *ing pigs” and ordering them to get out of the house. When he was eventually handcuffed, defendant's resistance disappeared and he told the officers, “You got me. I'm done.” In the exercise of our independent review power, we find that appropriate weight was given to this evidence that defendant understood his own actions despite his inebriated state and, thus, that the verdicts were not against the weight of the evidence ( see People v. Burch, 45 A.D.3d 1188, 1189, 846 N.Y.S.2d 470 [2007]; People v. Hazen, 20 A.D.3d at 588–589, 799 N.Y.S.2d 596).

Defendant next contends that the jury verdict convicting him of assault in the second degree is repugnant to his acquittal on the charge of obstructing governmental administration. It is conceded that this claim was not preserved for appellate review, as it was not raised in County Court before the jury was discharged ( see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 [1985]; People v. Murphy, 66 A.D.3d 1234, 1236, 887 N.Y.S.2d 359 [2009] ), and we decline the request to take corrective action pursuant to our interest of justice jurisdiction ( see CPL 470.15[6] [a]; People v. Pearson, 69 A.D.3d 1226, 1227, 894 N.Y.S.2d 210 [2010], lv. denied 15 N.Y.3d 755, 906 N.Y.S.2d 828, 933 N.E.2d 227 [2010]; compare People v. Coville, 73 A.D.3d 1232, 1233, 901 N.Y.S.2d 730 [2010] ).

Next, we are unpersuaded by defendant's contention that County Court erred by denying his request to instruct the jury, as part of the intoxication charge, that the element of intent could have been negated by physical impairment caused by his blood loss. The jury heard testimony from which it could have concluded that defendant's blood loss, as well as his intoxication, affected his general cognitive abilities. Although the court refused this requested charge, it repeatedly instructed the jury that intent means “conscious objective or purpose” ¹ and gave an intoxication instruction that mirrored the pattern jury instruction for that defense ( see CJI2d[NY] Penal Law § 15.25; People v. Hebert, 68 A.D.3d 1530, 1532, 891 N.Y.S.2d 708 [2009], lv. denied 14 N.Y.3d 841, 901 N.Y.S.2d 147, 927 N.E.2d 568 [2010] ). Notably, no pattern jury instruction exists for a defense of physical impairment resulting from blood loss, nor is such a theory of defense generally recognized ( see generally 35 N.Y. Jur. 2d, Criminal Law §§ 64–200). No specific language is required in jury instructions “so long as the charge, as a whole, correctly conveys the proper standards...