People v. Sabirov

• Decision Date: 17 June 2020
• Docket Number: 2019–11381,Docket No. 2015KN076027
• Citation: 126 N.Y.S.3d 144,184 A.D.3d 714
• Parties: The PEOPLE, etc., Respondent, v. Sandjar SABIROV, Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 714
126 N.Y.S.3d 144

The PEOPLE, etc., Respondent,
v.
Sandjar SABIROV, Appellant.

2019–11381
Docket No. 2015KN076027

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

Submitted—November 19, 2019
June 17, 2020

126 N.Y.S.3d 145

Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Sarah G. Pitts of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

184 A.D.3d 714

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John G. Ingram, J.), rendered March 17, 2017, convicting him of forcible touching (two counts) and sexual abuse in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The defendant was convicted of two counts of forcible touching and two counts of sexual abuse in the third degree for grabbing the buttocks of two females while inside a subway station.

184 A.D.3d 715

Contrary to the determination of the Supreme Court, an intoxication charge was warranted (see People v. Perry, 61 N.Y.2d 849, 850–851, 473 N.Y.S.2d 966, 462 N.E.2d 143 ; People v. Smith, 43 A.D.3d 475, 475–476, 840 N.Y.S.2d 824 ). An intoxication charge should be given if sufficient evidence of the defendant's intoxication is in the record for a reasonable person to entertain doubt as to the element of intent (see People v. Perry, 61 N.Y.2d at 850, 473 N.Y.S.2d 966, 462 N.E.2d 143 ; People v. Smith, 43 A.D.3d at 475–476, 840 N.Y.S.2d 824 ). Here, viewing the evidence in the light most favorable to the defendant (see People v. Farnsworth, 65 N.Y.2d 734, 735, 492 N.Y.S.2d 12, 481 N.E.2d 552 ; People v. Goldring, 133 A.D.3d 684, 685, 19 N.Y.S.3d 87 ), although each of the complainants testified at trial that the defendant did not stumble, slur his speech, or otherwise appear intoxicated and the arresting officer testified that he did not recall if the defendant appeared intoxicated at the time of arrest, the record contains other evidence that the defendant was intoxicated at the time of the incident and the court excluded admissible evidence that also supports the defendant's request for an intoxication charge.

The arresting officer testified that when each of the complainants identified the defendant to him at the scene, the defendant was leaning against a wall and did not attempt to run away. The officer further testified that he wrote in his "paperwork" that the defendant was intoxicated and that the reason he did not issue a desk appearance ticket informing the defendant when he was to return to court was because, according to his paperwork, the defendant was intoxicated. Moreover, the defendant testified that, on the day at

126 N.Y.S.3d 146

issue, he argued with his wife, consumed 150 grams of vodka on an empty stomach and purchased additional beer to drink. He also testified that he did not remember how much beer he drank or what happened next, and that when he "was conscious," he was at the police station. The defendant's testimony, coupled with the arresting officer's testimony, was sufficient evidence to support the defendant's request for an intoxication charge (see People v. Velcher, 116 A.D.3d 799, 800, 982 N.Y.S.2d 905 ).

The defendant also sought to introduce as a business record a Desk Appearance Ticket Investigation form (hereinafter the DAT form) which contains information from the arresting officer at the...