PEOPLE v. JOHNSON (2024)

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 4, 2022, as amended on May 10, 2022, convicting defendant, after a jury trial, of criminal sexual act in the first degree and assault in the second degree, and sentencing him to an aggregate term of 15 years, followed by 20 years of postrelease supervision, unanimously affirmed.

The court correctly denied defendant's request for an intoxication charge because he failed to present “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]).  While the victim testified that defendant was very drunk, defendant presented no details regarding the “number of drinks he had” “whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, [or] the specific impact of the alcohol upon his behavior or mental state” (People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994];  compare People v. Velcher, 116 A.D.3d 799, 982 N.Y.S.2d 905 [2d Dept. 2014], lv denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 [2014]).  Additionally, the evidence of “the period of time during which [the drinks] were consumed” and “the lapse of time between consumption” and the attack was vague (Gaines, 83 N.Y.2d at 927, 615 N.Y.S.2d 309, 638 N.E.2d 954).  In any event, any error was harmless because there was overwhelming evidence of defendant's intent, and there was no significant probability that the jury would have acquitted defendant had it been given an intoxication charge (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975];  see e.g. People v. Martinez, 18 A.D.3d 343, 344, 795 N.Y.S.2d 230 [1st Dept. 2005], lv denied 5 N.Y.3d 808, 803 N.Y.S.2d 37, 836 N.E.2d 1160 [2005]).

The court should have granted defendant's request for an adverse inference charge based on the People's failure to disclose the property voucher from defendant's cell phone (see CPL 245.20[1][m];  245.80[1];  People v. Handy, 20 N.Y.3d 663, 665, 966 N.Y.S.2d 351, 988 N.E.2d 879 [2013]).  Because the police destroyed the evidence by selling defendant's phone at auction, the adverse inference charge was “mandatory upon request” (People v. Viruet, 29 N.Y.3d 527, 532, 59 N.Y.S.3d 294, 81 N.E.3d 828 [2017]).  However, we find that this error was harmless (see id. at 533, 59 N.Y.S.3d 294, 81 N.E.3d 828).

Defendant failed to preserve his claim that the People committed a Brady violation (see People v. Anderson, 205 A.D.2d 399, 400, 613 N.Y.S.2d 612 [1st Dept. 1994], lv denied 84 N.Y.2d 932, 621 N.Y.S.2d 529, 645 N.E.2d 1229 [1994]), and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.

We perceive no basis for reducing the sentence.