Opinion
665 KA 18-01868
11-17-2023
The PEOPLE of the State of New York, Respondent, v. John PARNELL, Jr., Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the first degree ( Penal Law § 120.10 [1] ) for stabbing an unarmed man in the chest with an eight-inch folding knife over a dispute regarding a $10 debt. Although defendant concedes that he intentionally stabbed the victim and that the victim sustained a serious injury as a result of the stabbing that nearly killed him, defendant contends that the evidence at trial was legally insufficient to establish that he intended to cause serious physical injury to the victim and that the verdict is against the weight of the evidence in that regard. We reject those contentions. Viewing the evidence in the light most favorable to the People, as we must when reviewing a contention regarding the legal sufficiency of trial evidence (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could have found that defendant "intended to cause serious physical injury when he stabbed the victim in the chest with a knife" ( People v. Williams , 134 A.D.3d 1572, 1573, 23 N.Y.S.3d 780 [4th Dept. 2015] ; see People v. Goley , 113 A.D.3d 1083, 1083, 977 N.Y.S.2d 847 [4th Dept. 2014] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Further, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
In light of the foregoing, we also reject defendant's contention that, at most, the evidence established that he acted recklessly and, therefore, he should have been convicted of the lesser included offense of reckless assault in the second degree ( Penal Law § 120.05 [4] ). The jury was appropriately instructed "to consider the lesser included offense only upon reaching a unanimous verdict of not guilty of the greater" ( People v. Boettcher , 69 N.Y.2d 174, 183, 513 N.Y.S.2d 83, 505 N.E.2d 594 [1987] ). Once the jury reached a unanimous verdict of guilty on the greater offense of intentional assault in the first degree ( § 120.10 [1] ), it had no occasion to consider the lesser offense of reckless assault in the second degree ( § 120.05 [4] ).
Defendant further contends that he was denied effective assistance of counsel when defense counsel failed to pursue an intoxication defense at trial (see Penal Law § 15.25 ). "An intoxication charge is warranted if, viewing 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 744, 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006 [2011] ). It "requires more than a bare assertion by a defendant that [they were] intoxicated" ( People v. Gaines , 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994] ), and "[t]he decision whether to pursue an intoxication defense is clearly one of strategy" ( People v. Russell , 133 A.D.3d 1199, 1201, 20 N.Y.S.3d 760 [4th Dept. 2015], lv denied 26 N.Y.3d 1149, 32 N.Y.S.3d 63, 51 N.E.3d 574 [2016]). Here, although the victim testified that defendant was "drunk" at the time of the incident, there was no evidence regarding "the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state" ( Gaines , 83 N.Y.2d at 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 ). Moreover, the police investigator who interviewed defendant on the night of the stabbing had no concerns that defendant was intoxicated.
As a result, the record does not establish that defendant's use of intoxicants was " ‘of such nature or quantity to support the inference that [his] ingestion was sufficient to affect [his] ability to form the necessary criminal intent’ " ( Sirico , 17 N.Y.3d at 745, 929 N.Y.S.2d 14, 952 N.E.2d 1006, quoting People v. Rodriguez , 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 [1990] ). We thus conclude that, under the circumstances presented on this record, defendant has failed " ‘to demonstrate the absence of strategic or other legitimate explanations’ for defense counsel's alleged failure to pursue an intoxication defense" ( Russell , 133 A.D.3d at 1201, 20 N.Y.S.3d 760, quoting People v. Rivera , 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988] ). To the extent that defendant's claim of ineffective assistance of counsel is based on matters outside the record, i.e., with respect to defense counsel's alleged failure to investigate a potential intoxication defense, it must be raised by way of a motion pursuant to CPL 440.10 (see People v. Beasley , 147 A.D.3d 1549, 1550, 47 N.Y.S.3d 573 [4th Dept. 2017], lv denied 29 N.Y.3d 1028, 62 N.Y.S.3d 297, 84 N.E.3d 969 [2017] ).
Finally, the sentence is not unduly harsh or severe.