People v. Adrian

209 A.D.3d 1116

176 N.Y.S.3d 856

The PEOPLE of the State of New York, Respondent,

v.Raymond ADRIAN, Appellant.

112597

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

Calendar Date: September 14, 2022

Decided and Entered: October 20, 2022

David E. Woodin, Catskill, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Greene County (Terry J. Wilhelm, J.), rendered September 11, 2020, upon a verdict convicting defendant of the crime of assault in the second degree.

Defendant was charged by indictment with assault in the second degree in connection with an altercation that occurred on November 17, 2018, at Brennan's Bar in the Town of Coxsackie, Greene County, that caused the victim serious injury. Following a jury trial, defendant was convicted as charged. After defendant unsuccessfully moved to set aside the verdict, County Court sentenced him to a prison term of five years followed by a period of postrelease supervision. Defendant appeals.

Defendant contends that County Court erred in its denial of his request for a jury charge on intoxication. "To warrant the submission of an intoxication charge to a jury, there must be sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis" ( People v. Burks, 172 A.D.3d 1640, 1643, 99 N.Y.S.3d 790 [3d Dept. 2019] [internal quotation marks and citations omitted], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 665, 130 N.E.3d 1275 [2019] ; see Penal Law § 15.25 ; People v. Rodriguez, 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 [1990] ). When making the determination as to whether an intoxication charge is warranted, the evidence must be viewed "in the light most favorable to the defendant" ( People v. Sirico, 17 N.Y.3d 744, 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006 [2011] ). "[A]lthough a relatively low threshold exists to demonstrate entitlement to an intoxication charge" ( People v. Duffy, 119 A.D.3d 1231, 1234, 990 N.Y.S.2d 346 [3d Dept. 2014] [internal quotation marks and citations omitted], lv denied 24 N.Y.3d 1043, 998 N.Y.S.2d 313, 23 N.E.3d 156 [2014] ), "[e]vidence of intoxication, even under this standard, requires more than a bare assertion by a defendant that he [or she] was intoxicated" ( People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994] ; see People v. Burks, 172 A.D.3d at 1643, 99 N.Y.S.3d 790 ).

Testimony at trial demonstrated that, approximately an hour prior to the altercation, defendant walked into the bar holding a large bottle of Heineken beer, which the bartender said could not be brought into the bar. Although the bartender testified that defendant was not intoxicated, she admitted that she cut him off after serving him only two drinks. Additionally, another witness testified that, prior to serving defendant, the bartender inquired as to whether he had a designated driver. Multiple witnesses described defendant, prior to the altercation, as being loud, obnoxious and argumentative. Specifically, that he argued with the bartender over details on a poster advertising a benefit, just prior to suggesting to the victim that they "step outside." Testimony also revealed that the bartender and the victim, who is the bartender's fiance´, were intoxicated the night of the incident, both having consumed alcohol and the victim having also used cocaine.

Although this testimony, standing alone, may not be sufficient to meet the "relatively low threshold" necessary for an intoxication charge ( People v. Rodriguez, 76 N.Y.2d at 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 ), we cannot ignore the video evidence that was admitted at trial. This video evidence depicts a man, who appears to be defendant, at the bar earlier in the day, drinking beer and playing pool for approximately two hours. The way this man appears to behave in the earlier video is in stark contrast to how defendant behaved when returning to the bar later that night. Most notably, earlier in the day he is playing pool and appears to be quite calm and getting along with other patrons, but later in the night, upon his return, he has an unsteady gait and is depicted gesturing wildly and becoming irate just prior to exiting the bar, at which time the altercation occurred. Although the People correctly indicate that no witness affirmatively identified the man who was at the bar earlier in the day as defendant, similarly, no one identified the man in the later video specifically as defendant. However, this Court, having viewed the video, can certainly see the striking similarities between the man that was in the bar earlier and the man who was there later, including that the man was of the same general size and body composition and was wearing the same clothes. Certainly, it would not be unreasonable to ask the jury, which also was able to view all of the video evidence and personally observe defendant in the courtroom, to consider whether that was the same person.

"[V]iewing the evidence in the light most favorable to the defendant, there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis" ( People v. Sirico, 17 N.Y.3d at 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006 [internal quotation marks and citation omitted]). Here, in proving assault in the second degree, the People had the burden of establishing that defendant possessed the intent to "cause serious physical injury to another person" ( Penal Law § 120.05[1] ). Although there was testimony that defendant was loud and obnoxious and was arguing with the bartender about the benefit poster just prior to the altercation, there was no testimony regarding interactions between the victim and defendant just prior to the altercation, which could have left a question in the...