People v. Shuler

• Citation: 952 N.Y.S.2d 687,100 A.D.3d 1041,2012 N.Y. Slip Op. 07232
• Parties: The PEOPLE of the State of New York, Respondent, v. Rashee SHULER, Appellant.
• Decision Date: 01 November 2012
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1041
952 N.Y.S.2d 687
2012 N.Y. Slip Op. 07232

The PEOPLE of the State of New York, Respondent,
v.
Rashee SHULER, Appellant.

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

Nov. 1, 2012.

[952 N.Y.S.2d 688]

Cynthia Feathers, Glens Falls, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Brian Leeds of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.

STEIN, J.

[100 A.D.3d 1041]Appeal from a judgment of the County Court of [100 A.D.3d 1042]Broome County (Cawley, J.), rendered February 1, 2011, upon a verdict convicting defendant of the crime of attempted robbery in the second degree (two counts).

During the evening of October 14, 2008, Charles Williams, Daquan Harrison, Brianna Sheppard and Paul Barnett drove to the home of Mark Marcello, a marihuana dealer, intending to rob him of marihuana. On the way, they stopped to pick up defendant, who had telephoned Barnett in search of both marihuana and a place to stay overnight. During the short drive to Marcello's house, defendant learned that Marcello had sold marihuana to defendant's 13–year–old daughter. When they arrived, Marcello was smoking marihuana in the backyard with his friend Wesley Sherwood. Defendant, Williams and Harrison walked behind the house, where defendant confronted Marcello while Harrison began attacking him and Williams opened his shirt to display a pellet gun as a means of intimidating Sherwood. The police were called by an occupant of the house; Marcello and Sherwood were ultimately able to get inside the house and Williams, Harrison, Sheppard and Barnett fled. Defendant was arrested at the scene and was subsequently indicted for two counts of attempted robbery in the second degree. After a jury trial, defendant was found guilty as charged and was sentenced,

[952 N.Y.S.2d 689]

as a persistent violent felony offender, to a prison term of 12 years to life. Defendant now appeals and we affirm.

We begin with defendant's contention that the verdict was against the weight of the evidence. In order to convict defendant of attempted robbery in the second degree based on the facts alleged in the first count of the indictment, the People were required to prove that, with the intent to forcibly steal property, defendant attempted to do so and was aided by another person who was present ( seePenal Law §§ 110.00, 160.10[1] ). In order to convict defendant of such charge under the second count of the indictment, it was necessary for the People to prove that, in the course of the commission of the crime, defendant or another participant displayed what appeared to be a firearm ( seePenal Law §§ 110.00, 160.10[2][b] ).

Defendant first argues that the weight of the credible evidence does not support a finding that he was able to form the mental intent required for criminal responsibility due to his intoxicated state.¹ In that regard, several witnesses testified [100 A.D.3d 1043]that, although defendant smelled of alcohol or was under the influence, he did not appear to be inebriated or seemed only “a little bit drunk.” In addition, evidence that defendant had the presence of mind to, among other things, approach the police with his arms up—stating that he was unarmed—and that he was able to provide the police with a coherent narrative provided ample support for the jury's finding that defendant's level of intoxication did not negate his intent to commit the charged crime ( see People v. Rolfe, 83 A.D.3d 1217, 1217–1218, 920 N.Y.S.2d 853 [2011],lv. denied17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011];People v. Hazen, 20 A.D.3d 586, 588–589, 799 N.Y.S.2d 596 [2005],lv. denied5 N.Y.3d 806, 803 N.Y.S.2d 35, 836 N.E.2d 1158 [2005] ). To the extent that there was contradictory testimony, the jury was free to assess the credibility of each witness ( see People v. Negron, 91 N.Y.2d 788, 792, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ).

Defendant's contention that his conviction under count 2 should be reversed because the evidence did not support a finding that he knew that Williams possessed and/or would display what appeared to be a firearm is also unavailing, as such knowledge is unnecessary to establish defendant's criminal responsibility ( see People v. Horsey, 304 A.D.2d 852, 854, 758 N.Y.S.2d 695 [2003],lv. denied1 N.Y.3d 573, 775 N.Y.S.2d 790, 807 N.E.2d 903 [2003];People v. Gage, 259 A.D.2d 837, 838–839, 687 N.Y.S.2d 202 [1999],lvs. denied93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 51093 N.Y.2d 970, 695 N.Y.S.2d 56, 716 N.E.2d 1101 [1999] ). To the extent that defendant challenges any of the remaining elements of the crimes charged, we need only note that, even if an acquittal would not have been unreasonable ( see People v. Dozier, 94 A.D.3d 1226, 1227, 942 N.Y.S.2d 266 [2012],lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012];People v. Johnson, 91 A.D.3d 1194, 1196, 937 N.Y.S.2d 443 [2012],lv. denied18 N.Y.3d 995, 945 N.Y.S.2d 649, 968 N.E.2d 1005 [2012] ), when we view all the evidence in a neutral light, “ ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the

[952 N.Y.S.2d 690]

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